[Federal Register Volume 64, Number 162 (Monday, August 23, 1999)]
[Proposed Rules]
[Pages 46058-46089]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-21415]
[[Page 46057]]
_______________________________________________________________________
Part III
Environmental Protection Agency
_______________________________________________________________________
40 CFR Part 122 et al.
Revisions to the National Pollutant Discharge Elimination System
Program and Federal Antidegradation Policy in Support of Revisions to
the Water Quality Planning and Management Regulation; Proposed Rule
Federal Register / Vol. 64, No. 162 / Monday, August 23, 1999 /
Proposed Rules
[[Page 46058]]
ENVIRONMENTAL PROTECTION AGENCY
4O CFR Parts 122, 123, 124, and 131
[OW-FRL-6424-3]
[RIN-2040-AD36]
Revisions to the National Pollutant Discharge Elimination System
Program and Federal Antidegradation Policy in Support of Revisions to
the Water Quality Planning and Management Regulation
AGENCY: Environmental Protection Agency.
ACTION: Proposed rule.
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SUMMARY: Today's action revises, clarifies and strengthens the
Environmental Protection Agency's (EPA's) National Pollutant Discharge
Elimination System (NPDES) Program and Water Quality Standards (WQS)
Regulation under the Clean Water Act (CWA). Today's proposed rule is
intended to achieve two objectives. The first objective is to achieve
reasonable further progress toward attaining water quality standards in
impaired waterbodies prior to EPA approval or establishment of a Total
Maximum Daily Load (TMDL). To achieve this objective, EPA is proposing
explicit language describing the Agency's discretionary authority to
object to, and reissue, if necessary, State-issued expired and
administratively-continued permits authorizing discharges into impaired
waterbodies in the absence of an EPA approved or established TMDL. EPA
would exercise this authority to ensure that those permits are
consistent with water quality standards. Also to achieve this
objective, EPA is proposing to require that selected dischargers offset
any increase in mass loadings of a pollutant(s) causing the
nonattainment of water quality standards in an amount that would result
in reasonable further progress toward attainment of water quality
standards.
The second objective is to achieve reasonable assurance that an
established TMDL will be implemented. To achieve this objective, EPA is
proposing explicit language describing EPA's discretionary authority to
object to, and reissue, if necessary, State-issued expired and
administratively-continued permits authorizing discharges into impaired
waterbodies with established and approved TMDLs. EPA would exercise
this authority to ensure that those permits are consistent with
applicable wasteload allocations in a TMDL. Also to achieve this
objective, EPA is proposing explicit language describing the authority
of both EPA and States with approved NPDES programs, to designate
certain currently unregulated sources as sources that would require an
NPDES permit.
DATES: Comments on this proposal must be received, postmarked or
delivered by hand on or before October 22, 1999.
ADDRESSES: Send written comments on the proposed rule to W-99-04,
NPDES/WQS, Comment Clerk, Water Docket, Environmental Protection
Agency, 401 M Street, SW, Washington, DC 20460. Comments can also be
submitted electronically to OW-Docket@epa.gov (see ``DOCKET'' section
below). A copy of the supporting documents cited in this proposal is
available for review at EPA's Water Docket; 401 M Street, SW, Mail
code: EB57, Washington, DC 20460.
FOR FURTHER INFORMATION CONTACT: Kim Kramer, Office of Wastewater
Management, 401 M St., SW, Washington, DC 20640, Mail Code 4203, e-
mail: Kramer.Kim@epa.gov, telephone: (202) 260-9541 for information
regarding the NPDES provisions, or Susan Gilbertson, Office of Science
and Technology, 401 M St., SW, Washington, DC 20460, Mail Code 4305, e-
mail: Gilbertson.Sue@epa.gov, telephone: (202) 260-7301 for information
regarding the water quality standards provisions.
SUPPLEMENTARY INFORMATION:
A. Table of Contents of This Preamble
I. Purposes and Objectives of Today's Proposed Rules
II. Proposed Requirements for New and Significantly Expanding
Dischargers Located on Impaired Waters
A. Who Would Be Subject to This Proposal?
1. Which Sources Discharge New Pollutant Loads to a Waterbody?
2. Would Dischargers Who are Currently Discharging but Move
Their Outfall(s) to Another Waterbody Be Subject to This Proposal?
3. Will The Proposed Changes to the Definitions of a New
Discharger and an Existing Source Affect Their Application Elsewhere
in the Regulations?
4. Would Any Existing Dischargers Be Subject to This Proposal?
5. How is EPA Proposing to Define A ``Significant Expansion'' of
an Existing Discharger?
B. What are the Proposed Changes to the Federal Antidegradation
Policy?
1. What is the Current Federal Antidegradation Policy?
2. What Were the Recommendations of the TMDL Federal Advisory
Committee?
3. What Revisions is EPA Proposing Today?
i. Why is EPA Proposing to Require Dischargers Subject to This
Proposal to Achieve Reasonable Further Progress Toward Attaining
Water Quality Standards?
a. How Does This Relate to the TMDL FACA Committee's
Recommendations?
b. Has This Approach Been Used in Other Statutes?
ii. How is EPA Proposing to Define Reasonable Further Progress?
a. Has Reasonable Further Progress Been Defined Under Other
Statutes?
iii. What Offsets Would Affected Dischargers Need to Obtain to
Ensure Reasonable Further Progress?
a. Could Offsets be Obtained From Existing Nonpoint Sources?
b. Could the Director Vary the Amount of the Offset?
iv. Would the Reasonable Further Progress Requirements Apply to
Affected Dischargers Proposing to Discharge to All Waters of the
U.S.?
v. Why is EPA Proposing to Subject Only New Dischargers and
Existing Dischargers Undergoing a Significant Expansion to These
Requirements?
vi. Would All New Dischargers and Existing Dischargers
Undergoing a Significant Expansion Be Subject to These Proposed
Requirements?
a. How Would This Proposal Facilitate the Establishment of
Trading Markets?
C. How Would EPA Ensure any Needed Changes to the
Antidegradation Policies in State, Territorial and Tribal Water
Quality Standards?
D. How Would These Changes Be Implemented Through NPDES Permits?
1. Must the New or Significantly Expanding Discharger Obtain an
Offset of the Same Pollutant(s) the New or Significantly Expanding
Discharger Would Be Required to Offset?
2. From What Geographic Area Would the Pollutant Load Reductions
Need to Be Obtained?
3. Could the Pollutant Load Reductions Come From a Source With
Existing Requirements to Reduce its Loads?
4. When Would the Pollutant Load Reductions Need to Be Obtained?
5. How Long Would the Pollutant Load Reductions Need to Be
Maintained?
6. What Would Be Required When the Source of the Offset is an
Existing Point Source?
7. What Would Be Required When the Source of the Offset is an
Existing Nonpoint Source?
8. How Would Offsets Be Obtained From Sources Seeking Coverage
Under a General Permit?
i. What Options is the Agency Considering?
ii. What If a Notice of Intent Form is Not Required?
iii. Who and Under What Circumstances Would Need to Submit a
Supplemental Certification?
iv. How Would Offsets Be Determined for Dischargers Regulated
Solely by BMPs?
E. Additional Proposed Modifications to Related NPDES Provisions
1. How is EPA Proposing to Modify the Water Quality-Based
Permitting Regulations?
[[Page 46059]]
2. How is EPA Proposing to Modify the Regulations Pertaining to
the Statement of Basis and Permit Fact Sheet?
III. Proposed Authority to Designate Additional Sources of
Pollutants to the NPDES Program
A. How Would Animal Feeding Operations and Aquatic Animal
Production Facilities Be Affected by Today's Proposal?
1. How Do These Sources Become Subject to the NPDES Program?
i. Under What Circumstances Are CAFOs Designated on a Case-By-
Case Basis?
ii. Under What Circumstances are CAAPFs Designated on a Case-by-
Case Basis?
2. Why is EPA Proposing Changes to the CAFO and CAAPFs
Jurisdictional Regulations?
i. How Do Animal Feeding Operations Impact Water Quality?
ii. How Do Aquatic Animal Production Facilities Impact Water
Quality?
3. What Changes is EPA Proposing to Make to the CAFO and CAAPFs
Jurisdictional Regulations?
i. When Would EPA Designate These Sources?
ii. How Will This Proposal Affect States?
iii. Who Would Issue Permits to These Sources Once Designated?
4. How Would EPA Revise Regulatory Text?
B. How Would Silvicultural Activities Be Affected by Today's
Proposal?
1. Which Sources Are Currently Excluded From the Definition of a
``Point Source?'
2. Are All Discharges From Silvicultural Activities Currently
Excluded From the NPDES Program?
3. Which Silvicultural Discharges Would Be Designated Under
Today's Proposal as Sources Subject to the NPDES Program?
4. Why is EPA Proposing to Remove the Regulatory Exclusion for
These Silvicultural Discharges?
5. When Would Silviculture Sources Be Required to Obtain an
NPDES Permit?
6. How Would States Be Affected by This Proposal?
IV. Proposed EPA Authority to Reissue State-Issued Expired and
Administratively-Continued NPDES Permits
A. Can EPA Object to State-Issued Expired and Administratively-
Continued Permits?
B. How Would EPA Review and Object to a State-Issued Expired and
Administratively-Continued Permit?
C. When Would EPA Withdraw its Objection?
D. When Could EPA Invoke This Authority?
E. Will EPA Work With the States Before Invoking This Authority?
F. What If a Permit Has Expired but the Permittee Has Not
Submitted a Timely and Complete Application for Renewal to the
State?
G. What Authority Supports Today's Proposed Changes?
H. Conclusion
V. Regulatory Assessment Requirements
A. Regulatory Flexibility Act, as amended by the Small Business
Regulatory Enforcement Fairness Act of 1996
B. Executive Order 12866
C. Unfunded Mandates Reform Act
D. Paperwork Reduction Act
E. Executive Orders on Federalism
F. Executive Order 13084: Consultation and Coordination With
Indian Tribal Governments
G. Executive Order 13045: Protection of Children From
Environmental Health Risks and Safety Risks
H. National Technology Transfer and Advancement Act
I. Executive Order 12898: Environmental Justice
B. Potentially Regulated Entities
Entities discharging pollutants to certain waters of the U.S. could
be regulated by this rulemaking if they are subject to National
Pollutant Discharge Elimination System (NPDES) program. Potentially
regulated entities include:
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Examples of potentially
Category regulated entities
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State, Territorial or authorized Tribal States, territories and
Governments. authorized Tribes issuing
NPDES permits
Federal Government..................... EPA
Industry............................... Industries, including municipal
construction sites,
discharging pollutants to
waters of the U.S.
Municipalities......................... Owners and operators of
publically-owned treatment
works, municipal separate
storm sewer systems, and
municipal construction and
industrial activities
discharging pollutants to
waters of the U.S.
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This table is not intended to be exhaustive, but rather provide a
guide for readers to identify entities that EPA believes could
potentially be affected by this action. Other types of entities not
listed in this table could also be regulated. To determine whether your
facility may be regulated by this proposed action, you should carefully
examine the applicability criteria in 40 CFR 122.4, 122.23, 122.24,
122.26, 123.44 and 131.12 of today's proposed rulemaking. If you have
any questions regarding the applicability of this action to a
particular entity, consult one of the persons listed in the FOR FURTHER
INFORMATION CONTACT section.
C. Docket
The record for this notice has been established under docket number
W-99-04 and includes supporting documentation. EPA requests that
commenters submit any references cited in their comments. EPA also
requests that commenters submitting written comments include an
original and 3 copies of their written comments and enclosures.
Commenters that want receipt of their comments acknowledged should
include a self-addressed, stamped envelope. No facsimiles (faxes) will
be accepted.
Electronic comments are encouraged and may be submitted to the
Water Docket (see ADDRESSES section above). Electronic comments must be
submitted as an ASCII file or a WordPerfect file. Electronic comments
must be identified by the docket number, (W-99-04). Comments and data
will also be accepted on disks in WP8 format or ASCII file format. No
confidential business information (CBI) should be sent via e-mail.
For access to docket materials, call EPA's Water Docket at (202)
260-3027 between 9:00 a.m. and 3:30 p.m. for an appointment. An
electronic version of this proposal will be available via the Internet
at: http://www.epa.gov.
I. Purposes and Objectives of Today's Proposed Rules
Today's proposed rule is intended to clarify and strengthen EPA's
NPDES and WQS regulations governing discharges into waterbodies that
are not attaining water quality standards. Today, EPA is separately
proposing revisions to its Total Maximum Daily Load regulations so that
TMDLs can more effectively contribute to improving the nation's water
quality. Today's proposal complements that effort by ensuring that two
objectives are met. The first objective applies in impaired waterbodies
prior to the establishment of a TMDL. The purpose of this objective is
to achieve reasonable further progress toward attaining water quality
standards. The second objective applies in impaired waterbodies after
the establishment of a TMDL. The purpose of this objective is to ensure
more effective implementation of TMDLs.
To meet the reasonable further progress objective, EPA is adding a
new antidegradation requirement and revising the NPDES permitting
regulations to implement that requirement. Today's proposal would
require all large new dischargers and existing dischargers undergoing a
significant expansion proposing to discharge the pollutant(s) of
concern into an impaired waterbody, to offset that new or increased
discharge. This requirement is in addition to otherwise applicable
requirements of the CWA and will ensure that there will be reasonable
further progress toward attaining water quality standards despite the
addition of the new load from those dischargers. Today's
[[Page 46060]]
proposal also establishes a number of requirements, under the NPDES
program, to ensure compliance with the antidegradation offset
requirement. Those requirements include boundaries on when and where
pollutant load reductions would need to be obtained. Therefore, today's
proposal will result in reasonable further progress toward attainment
of water quality standards. In some cases, such progress may even
result in the attainment of water quality standards so that a TMDL is
no longer required.
The Agency notes that this requirement is in addition to existing
requirements found at 40 CFR 122.44(d)(1)(vii) and 122.4(i). Section
122.44(d) requires dischargers, where necessary, to receive limits that
derive from and comply with water quality standards. Section 122.4(i)
requires that no permit be issued to a new source or a new discharger
if the discharge will cause or contribute to a violation of water
quality standards.
Today, EPA is also proposing to explicitly describe a Regional
Administrator's authority to trigger existing provisions for reviewing
and objecting to State-issued NPDES permits. Under the proposal, the
Regional Administrator will have the discretion, under certain
circumstances, to trigger these review and objection procedures when a
State fails to reissue an expired, State-issued permit that has been
administratively continued for more than 90 days. This proposal is
designed to address lengthy administrative continuance of permits that
authorize discharges into impaired waterbodies and which contain limits
that are insufficient to protect applicable water quality standards. By
not reissuing these permits, there is a delay in the implementation of
needed water quality-based effluent limitations. This provision will
serve both purposes of today's proposal. Prior to the establishment of
a TMDL, the provision can be used to ensure that more stringent
effluent limitations which derive from and comply with water quality
standards are implemented. Subsequent to the establishment of a TMDL,
this provision will enable the Regional Administrator to ensure that
existing dischargers receive permit limits consistent with wasteload
allocations in a TMDL.
EPA is today proposing additional revisions to the permitting
regulations to ensure that TMDLs are implemented. These revisions
include changes to the NPDES jurisdictional regulations regarding
designation of point sources for regulation under the NPDES permitting
program. EPA is proposing explicit language describing its authority,
in States with approved NPDES programs, to designate animal feeding
operations (AFOs) and aquatic animal production facilities (AAPFs) as
sources subject to NPDES requirements on a case-by-case basis. EPA is
also proposing to eliminate the current regulatory exclusion for
certain discharges from silvicultural activities. These discharges may
also become subject to NPDES requirements on a case-by-case basis. EPA
is constraining its discretion to exercise the authority to subject
these sources to the NPDES program to those circumstances when EPA
establishes a TMDL for a waterbody and determines that designation is
necessary to ensure that the wasteload allocations and load allocations
under the TMDL are achieved. The proposed rule does not place any
constraint on the discretion of State program Directors, in NPDES
delegated States, to designate silvicultural activities as point
sources. EPA recommends however, that States use this authority only on
a limited basis, in circumstances similar to those in which EPA intends
to use it (i.e., when there is no other means of providing reasonable
assurance that a load allocation or wasteload allocation in a TMDL will
be met).
Each of today's proposed revisions is designed to achieve the water
quality goals of the Clean Water Act. EPA believes that today's
proposal will ensure that those goals are met more quickly and that one
of the most important tools for achieving those goals, a TMDL, will be
implemented more effectively.
II. Proposed Requirements for New and Significantly Expanding
Dischargers Located on Impaired Waters
A. Who Would Be Subject to This Proposal?
EPA is today proposing to establish new requirements for
dischargers proposing to add new pollutant loads to an impaired
waterbody in the absence of a TMDL. These new requirements are located
in 40 CFR 122.4(j) and 131.12(a)(1)(ii). Section 122.4(j) applies to
all new dischargers and existing dischargers undergoing a significant
expansion proposing to add new pollutant loads to a waterbody. Section
131.12(a)(1)(ii) applies to large new and significantly expanding
dischargers proposing to add new pollutant loads to an impaired
waterbody for which EPA has not approved or established a TMDL. EPA is
also proposing to modify the definitions of a new discharger and an
existing source under 40 CFR 122.2 and 122.29.
EPA intends these new requirements to apply only to those
dischargers who are proposing to add new loads of pollutants to a
waterbody. Because the current definition of a new discharger can be
read to include some dischargers who are not adding new loads to a
waterbody, EPA is proposing to modify the existing definitions of both
a new discharger and an existing source. The definition of a new
discharger is currently found at 40 CFR 122.2 and the definition of an
existing source is currently found at 40 CFR 122.29. EPA is also
proposing to define the term ``significant expansion.'' All of these
definitions will be moved to 40 CFR 122.2.
A new discharger, as currently defined in 40 CFR 122.2, means any
building, structure, facility, or installation from which there is a
discharge of pollutants which commenced after August 13, 1979; which is
not a new source; and has never received a finally effective NPDES
permit. An existing source, as defined in 40 CFR 122.29, is any source
which is not a new source or a new discharger. The plain reading of the
current definition of a new discharger would subject certain sources to
today's proposed sections (122.4(j) and 131.12(a)(1)(ii), including the
proposed offset requirements explained below). Under the current
definition, these sources would be subject to today's proposal even
though they would not propose to discharge new pollutant loads to a
waterbody. Such sources include sources that have been and currently
are discharging pollutants that are not now subject to the NPDES
program but may in the future become subject to the NPDES program.
These sources would be subject to the requirements of the NPDES program
once designated.
Designation of sources can be made on a case-by-case basis
involving an individual source. For example, an individual medium-sized
animal feeding operation (AFO) may be designated as a medium-sized
concentrated animal feeding operation (CAFO).1 Designation
can also be made
[[Page 46061]]
by category. For example, sources that will become subject to the NPDES
program under the Storm Water Phase II rule will be designated on a
categorical basis.2 Although these sources have been
discharging before and at the time of designation, they would fall
within the current definition of a new discharger. As a result, unless
EPA amends the definitions of a new discharger and an existing source
for this purpose, these sources would be subject to the proposed
requirements of 40 CFR122.4(j) and 131.12(a)(1)(ii). As mentioned
above, EPA intends these sections to apply only to sources proposing to
discharge new pollutant loads to a waterbody.
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\1\ An example of a source that may be designated as a point
source on an individual basis and which at the time of designation,
would fall within the current definition of a new discharger, is a
medium-sized animal feeding operation (AFO) designated as a medium-
sized concentrated animal feeding operation (CAFO). This would be
the case where that AFO started discharging pollutants after August
13, 1979. This source is not a new source (there is no applicable
NSPS yet) and this source has never received a finally effective
NPDES permit. As an AFO, the source is not subject to the NPDES
permit program because AFOs are exempt from permit requirements
under 40 CFR 122.3(e). However, if that source is designated as a
CAFO (under 40 CFR 122.23) at any time in the future, it would fall
within the current definition of a new discharger.
\2\ An example of a source which may become subject to the NPDES
program as a result of a categorical designation of point sources
and which would fall within the current definition of a new
discharger is any Storm Water Phase II source that currently is and
has been discharging pollutants at any point after August 13, 1979.
These sources are not new sources (there is no applicable NSPS) and
these sources have never received a finally effective NPDES permit.
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1. Which Sources Discharge New Pollutant Loads to a Waterbody?
Sources that are proposing to discharge new pollutant loads to a
waterbody are dischargers that have not yet begun discharging but are
proposing to discharge. Also discharging new pollutant loads are those
dischargers that have been discharging to one waterbody and, for
example, propose to move their outfall to another location not within
the ``same body of water.'' Existing dischargers that expand or
increase their loads, discharge new pollutant loads to a waterbody as
well.
For proposed 40 CFR122.4(j) and 131.12(a)(1)(ii) to apply only to
dischargers that propose to discharge new pollutant loads to a
waterbody, EPA is proposing to modify the definition of a new
discharger. In addition, EPA is proposing to delete the current
definition of an existing source at 40 CFR 122.29 and replace it with a
new term, ``existing discharger,'' which will be defined in 40 CFR
122.2. EPA believes that consolidating these definitions into one
section provides greater clarity. The proposed modifications would
result in dischargers that fall into two classes, those that are
currently discharging to the same body of water (or existing
dischargers) and those that are not now discharging but wish to
discharge in the future (or new dischargers). For purposes of 40 CFR
122.4(j) and 131.12(a)(1)(ii), however, although dischargers would be
classified as either ``new dischargers'' or ``existing dischargers,'' a
new discharger may also be a new source and an existing discharger may
also be a new source.3
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\3\ The definition of a new source remains unchanged. A new
source is a source which began construction after the promulgation
of applicable new source performance standards (NSPS). Under this
unchanged definition of a new source, existing dischargers and new
dischargers (under this proposal) can be new sources subject to
NSPS. For example, if a discharger is a new discharger under this
proposal and that discharger began construction after the
promulgation of applicable NSPS, then that discharger would also be
a new source (subject to NSPS). Likewise, if a discharger is an
existing discharger under this proposal and that discharger began
construction after the promulgation of applicable NSPS, then that
discharger would also be a new source (subject to NSPS). If there
are no applicable NSPS for either discharger, then neither would be
a new source.
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2. Would Dischargers Who Are Currently Discharging but Move Their
Outfall(s) to Another Waterbody Be Subject to This Proposal?
Some dischargers move their outfalls from one waterbody to another
waterbody. In order to protect impaired waterbodies, EPA believes it is
appropriate to subject these dischargers to the new requirements
reflected in today's proposal. This is consistent with the Agency's
intent to subject sources introducing new pollutant loads to a
waterbody to today's new requirements. An outfall would not be subject
to today's new requirements if it was moved within the ``same body of
water'' as the existing outfall location. In determining whether the
outfall is moved within the ``same body of water'' as its original
location, the permitting authority should consider whether: (1) The
background concentration of the pollutant in the receiving water
(excluding any amount of the pollutant in the facility's discharge) is
similar at and between both outfall points; (2) there is a direct
hydrological connection between outfall points; and (3) water quality
characteristics (e.g., temperature, Ph, hardness) are similar at and
between both outfall points. Dischargers who move an outfall(s) within
the same body of water would remain existing dischargers.
The proposed modifications to the definitions of a new discharger
and an existing source will capture these sources as sources that would
be subject to proposed 40 CFR 122.4(j) and 131.12(a)(1)(ii).
3. Will the Proposed Changes to the Definitions of a New Discharger
and an Existing Source Affect Their Application Elsewhere in the
Regulations?
In modifying the definition of a new discharger, deleting the
definition of an existing source and proposing a definition for a new
term, an existing discharger, EPA does not intend to affect any other
existing regulations or effluent guidelines, including EPA's permit
decisionmaking regulations. Under 40 CFR 124.16 and 124.60 of EPA's
permit decisionmaking procedures, a ``new discharger,'' whose permit is
the subject of a pending administrative appeal, is without a permit
until the appeal process has concluded and the Agency's action has
become final. On the other hand, an existing facility, whose permit is
the subject of a pending administrative appeal, is not without a permit
until the appeal process has concluded. The uncontested terms of an
existing facility's permit take effect pending the conclusion of an
administrative appeal. Although today's proposal would change the
definitions of a new discharger and an existing source, EPA does not
intend to change the application of 40 CFR 124.16 or 124.60 at this
time. Accordingly, a discharger who, under the existing definitions, is
a ``new discharger'' and who, under the definitions in today's
proposal, would be an ``existing discharger,'' would be treated as a
``new discharger'' for purposes of 40 CFR 124.16 and 124.60. That is, a
discharger who would become an ``existing discharger'' by virtue of the
changes in today's proposal, would still be without a permit pending
the conclusion of an administrative appeal of the discharger's permit.
EPA believes that this interpretation of 40 CFR 124.16 and 124.60 makes
sense because dischargers who become ``existing dischargers'' by virtue
of the changed definitions proposed today would not have been operating
under an existing permit (this class of dischargers are those that are
discharging and not subject to NPDES regulation (discharging legally
without a permit) but are designated as sources subject to NPDES
regulation at some point in the future). EPA has long required that
those who wish to contest permit terms do so on their own time. 43 FR
37,087 (Aug. 21, 1978). This principle is especially compelling when
the Agency has never acted to approve the discharge on any set of terms
or conditions.
EPA believes that an amendment to 40 CFR part 124 would clarify how
EPA intends the stay provisions in 40 CFR 124.16 and 124.60 to apply to
``existing dischargers''; however, EPA has not included revised
language in today's proposal because the Agency has,
[[Page 46062]]
elsewhere, proposed changes to 40 CFR 124.16 and 124.60 which have not
yet been finalized. 61 FR 65,268 (Dec. 11, 1996)(Amendment to
Streamline the National Pollutant Discharge Elimination System Program
Regulations: Round 2). EPA proposes to amend 40 CFR 124.16 and 124.60
in a way that more clearly reflects its understanding of their
applicability to ``existing dischargers'' and which will conform to the
revisions made to these provisions in the Round 2 NPDES Streamlining
Rule once the contours of those revisions have become final. EPA
solicits comment on whether or not a new discharger that would become
an existing discharger under the definitions in today's proposal should
be treated as an existing discharger for purposes of 40 CFR 124.16 and
124.60.
EPA also invites comment on whether the modifications to these
definitions will have an effect on their application elsewhere in the
NPDES regulations. EPA may amend the respective sections so that these
definitional changes do not affect those sections.
4. Would Any Existing Dischargers Be Subject to This Proposal?
EPA has consistently believed that the mere fact that an existing
discharger currently discharges does not give them the privilege to
discharge any amount of additional loads without consequence.
Therefore, EPA is also proposing to subject existing dischargers
undergoing a significant expansion to proposed 40 CFR 122.4(j) and
131.12(a)(1)(ii). The term ``significant expansion'' will be newly
defined in 40 CFR 122.2.
5. How Is EPA Proposing To Define What Constitutes a ``Significant
Expansion'' of an Existing Discharger?
EPA is proposing to define the term ``significant expansion'' to
mean a twenty percent or greater increase in loadings above the
discharger's current permit limit. Twenty percent is consistent with
EPA's ``Guidance Manual for the Use of Production-Based Pretreatment
Standards and the Combined Wastestream Formula,'' September 19, 1985.
There, the Agency stated that an industrial user (IU) is required to
notify the Control Authority immediately where the IU's average
production and flow rate data have ``significantly'' changed. The
guidance further explains that as a general rule, the average rate is
considered to have changed significantly if the change is greater than
twenty percent. Where there is a significant change in these rates, it
is suggested that the Control Authority reevaluate the limits in the
IU's permit. In the preamble to the revision to the General
Pretreatment Regulations for Existing and New sources, FR 40562, 40565,
October 17, 1988, EPA confirmed the use of twenty percent as the level
at which an average rate is considered to have changed significantly.
The Agency stated that ``for purposes of today's rule, any increase or
decrease in production (or flow) rates will generally be deemed
significant if the change is equal to or greater than twenty percent of
the long term average production (or flow) rate at the facility.''
Therefore, in order to maintain consistency with its current guidance,
EPA is proposing a twenty percent increase in loadings above the
discharger's current permit limit as the threshold level which defines
a significant expansion.
The Agency believes however, that using an increase in ``loadings''
rather than ``production or flow rates'' is more appropriate. Today's
proposal is applicable to dischargers proposing to discharge new
pollutant loads into a waterbody and there may be cases where an
increase in production rates may not result in a corresponding increase
in pollutant loads. EPA invites comment on the appropriateness of a
twenty percent increase in loadings above the discharger's current
permit limit as the threshold level which defines a significant
expansion.
EPA is also considering the use of a fifty rather than a twenty
percent increase in loadings above the discharger's current permit
limit as the threshold level to define a ``significant expansion.'' A
threshold level of fifty percent is consistent with other Agency
guidance. On December 18, 1984, EPA put out guidance on the
``Calculation of Production-Based Effluent Limits'' (Memorandum from J.
William Jordan to Regional Branch Chiefs). The purpose of the guidance
was to clarify the procedure for calculating production-based effluent
limitations and to provide guidance on the use of alternate
limitations.
Effluent limitations guidelines are often derived from production
rates and are set at levels which include some variations in
production. However, certain facilities may have large random or cyclic
fluctuations in production rates where it would be appropriate to have
alternative effluent limitations which are applicable at some increased
production rate. The guidance mentioned above suggests that if
production rates are expected to change ``significantly'' during the
life of the permit, the permit should include alternate limits. The
guidance identifies that it is generally agreed that a ten to twenty
percent fluctuation in production is within the range of normal
variability and thus, would not need alternate limits. Further, it
states that changes in production rates which are substantially higher,
``such as fifty percent,'' would warrant the consideration of alternate
limits. EPA seeks comment on whether a fifty percent increase in
loadings above the discharger's current permit limits should be used to
define a significant expansion.
Other statutes and regulations also establish thresholds over which
a source cannot change without incurring different requirements. The
Resource Conservation and Recovery Act (RCRA) permit regulations hold
that ``reconstruction'' occurs when capital investment in the changes
to the facility exceed fifty percent of the capital cost of a
comparable entirely new hazardous waste management facility. 40 CFR
270.72(b). An interim status facility (a facility that is in existence
on the effective date of statutory or regulatory amendments that render
the facility subject to the requirement to have a RCRA permit), is
treated as having been issued a permit and may make changes short of
reconstruction, but cannot make changes amounting to reconstruction
until the facility receives a permit.
Under the Clean Air Act, new source review applies to new major
sources and modifications to existing major sources. 42 U.S.C. 7411. A
modification of an existing major source triggers review if it is a
physical or operational change that increases emissions by a
``significant'' amount. By regulation, EPA has defined ``significant''
based on the pollutant emitted. 40 CFR 51.165.
EPA invites comment on whether a threshold level other than twenty
or fifty percent should trigger the applicability of 40 CFR 122.4(j)
and 131.12(a)(1)(ii). One option would be to allow the permitting
authority to determine what constitutes a significant expansion on a
case-by-case basis, without establishing a specific threshold level.
The Agency notes that where an existing discharger undergoes a
``significant expansion,'' only the expanded portion of the discharge
(the new loadings) would be subject to the offset requirements under 40
CFR 131.12(a)(1)(ii). For existing dischargers with a current permitted
load, the definition of a significant expansion and the amount for
which offsets are required would be based on the increase in the
permitted load.
Based on an initial analysis of potentially affected sources, EPA
believes that the cost to dischargers of using a threshold of twenty
percent to
[[Page 46063]]
define a significant expansion would not be significantly greater than
the cost of using a threshold of 50 percent. EPA requests comment on
this initial conclusion and any supporting data commenters can provide.
EPA also invites comment on how to measure a significant expansion
and to calculate the corresponding offset requirements for those
dischargers who increase the loadings of a pollutant for which the
waterbody is impaired but for which there is no current permitted load
(there is no effluent limit for that particular pollutant in the
discharger's permit). It is EPA's intent that the offset requirements
apply to new pollutant loads and in the case of an existing discharger,
``significant'' new pollutant loads.
B. What Are the Proposed Changes to the Federal Antidegradation Policy?
EPA is proposing to amend 40 CFR 131.12(a) to require a new
discharger, or an existing discharger undergoing a significant
expansion, proposing to discharge to a waterbody not attaining water
quality standards, the pollutant(s) causing the nonattainment, to
achieve reasonable further progress toward attaining water quality
standards. This requirement, in addition to otherwise applicable
requirements of the CWA, would apply where there is no EPA approved or
established Total Maximum Daily Load (TMDL). When EPA has approved or
established a TMDL, a new discharger proposing to discharge the
pollutant(s) for which the TMDL was established, may discharge only in
accordance with that TMDL or a revised, approved TMDL. It would apply
only to new dischargers and existing dischargers undergoing a
significant expansion that are not a small business or entity as
defined in 5 U.S.C. 601(6). Therefore, a new discharger or existing
discharger undergoing a significant expansion which is not a small
business or entity, would need to comply with a permit limit that
derives from and complies with water quality standards and this new
requirement for reasonable further progress. With this proposed change,
EPA intends to ensure reasonable further progress toward restoring
water quality standards in impaired waters prior to the completion of
TMDLs. EPA emphasizes that this is an interim approach to attaining
water quality standards; these requirements apply only until the TMDL
is approved or established by EPA, and the TMDL is implemented with
respect to the discharger subject to these requirements.
1. What Is the Current Federal Antidegradation Policy?
Section 303(c) of the CWA establishes the basis for federal water
quality standards. EPA regulations implementing section 303(c) are
published at 40 CFR part 131. Under these rules, the minimum elements
that must be included in a State's water quality standards include: use
designations for all waterbodies in the State, water quality criteria
sufficient to protect those use designations, and an antidegradation
policy. See 40 CFR 131.6. States may also include in their standards,
policies generally affecting the standards' application and
implementation. See 40 CFR 131.13. These policies are subject to EPA
review and approval.
The current federal antidegradation policy performs an essential
function in protecting and maintaining water quality. Designated uses
establish the water quality goals for the waterbody, water quality
criteria define the minimum conditions necessary to achieve those goals
and the antidegradation policy specifies the framework to be used in
making decisions regarding changes in water quality. The intent of an
antidegradation policy is to ensure that in all cases, at a minimum:
(1) Water quality necessary to support existing uses is maintained
(Tier 1); (2) that where water quality is better than the minimum level
necessary to support protection and propagation of fish, shellfish and
wildlife, and recreation in and on the water (``fishable/swimmable''),
that water quality is also maintained and protected unless, through a
public process, some lowering of water quality is deemed to be
necessary to allow important economic or social development to occur
(Tier 2); and (3) where waterbodies are of exceptional recreational or
ecological significance, water quality is maintained and protected
(Tier 3). Antidegradation plays a critical role in allowing States and
Tribes to maintain and protect the finite public resource of clean
water and ensure that decisions to allow reductions in water quality
are made in a public manner and serve the public good. States and
authorized Tribes are required to adopt antidegradation policies at
least as stringent as the federal antidegradation policy.
Section 131.12(a) of the antidegradation policy, contained in the
federal water quality standards regulation, requires that existing uses
and the water quality necessary to protect them be maintained and
protected. This provision, in effect, establishes the floor of water
quality for all waters of the U.S., and that all waters of the U.S. are
subject to Tier 1 protection. In general, waters that are subject only
to Tier 1 antidegradation policies are those waterbodies that do not
exceed the CWA section 101(a) goals. These waters either do not have
any remaining assimilative capacity to receive additional loads of
pollutants without causing the loss of the existing use or the water
quality already is degraded below that necessary to maintain an
existing use. ``Existing uses'' are defined at 40 CFR 131.3(c) as those
uses actually attained in the waterbody on or after November 28, 1975,
whether or not they are included in the water quality standards.
Antidegradation policies are generally implemented for Tier 1 by
reviewing and determining whether a discharge would impair an existing
use. Tier 1 currently requires that water quality necessary to protect
existing uses shall be maintained and protected. In addition, the State
or Tribe should ensure that all existing uses are designated in
accordance with 40 CFR 131.10(i).
2. What Were the Recommendations of the TMDL Federal Advisory
Committee?
The Federal Advisory Committee on the Total Maximum Daily Load
Program recommended a number of ways to improve the effectiveness and
efficiency of EPA, State, Territorial and Tribal programs under section
303(d) of the CWA. These recommendations address many of the TMDL
program's complex technical and policy issues, and include
recommendations on several new policy and program directions. In
particular, the Committee recognized that there could be a considerable
time lag between the initial listing of a waterbody on a section 303(d)
list of impaired or threatened waters and the actual completion,
approval and implementation of the TMDL. Some on the Committee noted
that water quality should not be allowed to further degrade during that
time period. The Committee recommended that EPA actively encourage and
support stakeholders stabilizing and enhancing water quality before a
TMDL is in place (Committee Report at page 17). The Committee noted
that the most successful stakeholder efforts would lead to the full
restoration of water quality and attainment of water quality standards
and ultimately the water's removal from the section 303(d) list before
a TMDL is developed. The Committee recommended an optional
stabilization plan that would identify mechanisms that might allow for
[[Page 46064]]
exceptions from point source discharge restrictions upon demonstration
that the optional stabilization plan results in parameter specific net
progress in water quality through means other than those restrictions.
EPA believes that further degradation of already impaired
waterbodies must be prevented and also recognizes the need for progress
toward attaining water quality standards in this interim period.
Therefore, EPA believes that by creating a new requirement under the
federal antidegradation policy as reflected in today's proposal, not
only will further degradation of water quality be prevented, but
reasonable further progress towards restoring water quality standards
will be achieved.
3. What Revisions Is EPA Proposing Today?
i. Why Is EPA Proposing to Require Dischargers Subject to This
Proposal to Achieve Reasonable Further Progress Toward Attaining Water
Quality Standards?
Water quality standards serve as the foundation for the water-
quality based approach to pollution control and are a fundamental
component of watershed protection. Under the Clean Water Act, States,
Territories and authorized Tribes adopt water quality standards to
protect public health or welfare, enhance the quality of the nation's
water and serve the purposes of the Act. A primary objective of the Act
is to ``restore and maintain the chemical, physical and biological
integrity of the Nation's waters.'' CWA section 101(a). To date, EPA's
implementing regulations at 40 CFR 131 have addressed the mandate for
restoring the nation's waters through the specification of designated
uses. Designated uses are defined as those uses specified for each
waterbody or segment, whether or not those uses are being attained.
Designated uses focus on the attainable condition of the waterbody, in
contrast to existing uses which focus on the past or present condition
of the waterbody. It is through the designation of uses that the
environmental goals for specific waterbodies are established. States,
Territories and authorized Tribes have the flexibility to establish
goals for waters that require improvements in water quality, thus
establishing a requirement for restoration. Today's proposal
supplements the restoration provisions of the current regulations. By
establishing the requirement for reasonable further progress as a
component of the federal antidegradation policy, EPA believes the
objectives of the Act will be advanced.
Prior to today's proposal, Tier 1 of the federal antidegradation
policy has been aimed at protecting and maintaining existing uses of
waterbodies. EPA believes extending the protection of existing uses to
include a provision aimed at promoting reasonable further progress
toward restoring water quality in impaired waterbodies is both
consistent with the goals of the Act, and is a logical means for
meeting those goals.
The Agency's policy choice is supported by the Act's legislative
history. The Senate Report states:
In those waterbodies which are not pristine, it should be the
national policy to take those steps which will result in change
toward the pristine state in which the physical, chemical and
biological integrity of the waterbody can be said to exist. Striving
toward, and maintaining the pristine state is an objective which
minimizes the burden to man in maintaining a healthy environment,
and which will provide for a stable biosphere that is essential to
the well-being of human society. S. Rep. No. 92-414, 92d Cong. 1st.
Sess. at 76-77 (1971).
Establishing a requirement for reasonable further progress will result
in improvements in water quality and progress toward attaining water
quality standards, pending the establishment, approval and
implementation of the TMDL.
Today, EPA is proposing to require large new and significantly
expanding dischargers proposing to discharge to nonattained waterbodies
to achieve reasonable further progress toward attaining water quality
standards before discharging additional loadings of the pollutant
causing the nonattainment. In effect, certain dischargers will be
required to show net progress toward improving water quality as a
condition of being authorized to discharge to a nonattained waterbody.
EPA believes this proposal is consistent with the recommendations of
the Federal Advisory Committee on the Total Maximum Daily Load Program,
and the approach chosen by the Agency when faced with the need to
address a similar problem under the Clean Air Act.
a. How Does This Relate to the TMDL Federal Advisory Committee's
Recommendations?
As noted above, the Committee recommended that EPA actively
encourage and support stakeholders stabilizing and enhancing water
quality before a TMDL is in place. While EPA is not adopting all of the
Committee's recommendations, the Agency believes that progress toward
the section 101(a) goals of the Act should occur before allowing some
new and significantly expanding dischargers to add new loads of the
pollutant causing the nonattainment to an impaired waterbody.
b. Has This Approach Been Used in Other Statutes?
Just as the Clean Water Act establishes the goal to ``* * * restore
and maintain the chemical, physical and biological integrity of the
Nation's waters,'' the Clean Air Act declares its purpose is ``to
protect and enhance the quality of the Nation's air resources so as to
promote the public health and welfare and the productive capacity of
its population.'' CAA section101(b)(1). Given these similar goals, the
actions and reasoning of the Agency and Congress in dealing with areas
which are not meeting air quality standards can serve to guide EPA's
policy choices when dealing with waterbodies which are not attaining
water quality standards.
In 1970, the Clean Air Act required generally, that State programs
had to ensure that new sources did not interfere with the attainment of
national ambient air quality standards (NAAQS). In 1976, EPA issued an
interpretive ruling on the preconstruction review requirements for
major new stationary sources proposing to locate in an area that
exceeded a NAAQS. Given a standard and an area not in attainment with a
standard, the Agency believed that it was reasonable to allow a new
addition of the pollutant causing the nonattainment only if the new
source ensured that reasonable progress was made toward meeting that
standard. 41 FR 55524. Congress agreed that EPA's requirement was
reasonable. As a result, Congress clarified in the Clean Air Act
Amendments of 1977 that, in general, a new permit to construct and
operate a new major stationary source or a major modification to an
existing source proposing to emit the pollutant of concern in a
nonattainment area may only be issued if reasonable further progress
toward attainment of the NAAQS was made and the source met the most
stringent emissions limits. CAA section 173.
Given the similar statutory goals and the similar circumstances,
EPA again believes it would be reasonable to require new and
significantly expanding existing dischargers proposing to discharge
additional loads of the pollutant(s) causing the nonattainment of water
quality standards to ensure that progress is made toward attainment of
the standards in the future. EPA believes that establishing a similar
requirement for reasonable further progress as a component of the
federal antidegradation policy is the best way to meet the goals of the
Clean Water Act
[[Page 46065]]
when faced with new and significantly expanding existing dischargers
wishing to locate on impaired waterbodies.
EPA invites comments on this proposed change to Tier 1 of the
federal antidegradation policy. EPA also invites comment on whether
some other approach could serve as an appropriate means to ensure
reasonable further progress toward restoring water quality standards in
the interim period between listing of waterbodies under CWA section
303(d), and the establishment, approval and implementation of the TMDL.
ii. How is EPA Proposing to Define Reasonable Further Progress?
As stated above, EPA is proposing to require reasonable further
progress as a means of achieving the objectives of the Clean Water Act.
EPA is also today proposing a definition of reasonable further progress
for some new and existing dischargers. EPA believes reasonable further
progress is best achieved by offsetting any new loading of the
pollutant of concern to an impaired waterbody by reducing loads of the
same pollutant from existing sources located on the same waterbody. EPA
further believes that an offset of at least one and a half to one is
generally appropriate as means of ensuring reasonable further progress.
Offsets are not only the most feasible means to achieve reasonable
further progress for new and significantly expanding dischargers, they
are a logical means to actually achieve such progress. Further, they
are a means the Agency has chosen in similar circumstances.
EPA is thus proposing that, in general, pollutant load reductions
must be one and a half times the new loads of the pollutant to the
waterbody (see discussion below). Under such a requirement, reasonable
further progress toward meeting the applicable water quality standard
would be achieved because the total load of the pollutant to the
waterbody is reduced. An added benefit of requiring offsets as the
means for achieving reasonable further progress is that the requirement
creates an incentive for pollution prevention. A discharger subject to
the requirement can reduce the burden of finding sufficient offsets by
reducing the amount of pollutant(s) the discharger is proposing to add
to the impaired waterbody.
EPA also believes that this proposed requirement will serve as a
catalyst for the establishment of a trading market between large new
dischargers and existing dischargers undergoing a significant
expansion, and existing point source dischargers or nonpoint sources.
(See discussion below). EPA believes that the establishment of a
trading market will give dischargers more options to achieve any future
permit limits required by TMDLs more efficiently.
a. Has Reasonable Further Progress Been Defined Under Other
Statutes?
In 1977, Congress amended the Clean Air Act and adopted the general
requirements for a new permit to construct and operate a new major
stationary source or a major modification to an existing source
proposing to emit the pollutant of concern in a nonattainment area.
Such permits may be issued if, by the time the source begins operating,
sufficient offsetting emissions reductions have been attained such that
the total emissions in the area will be sufficiently less than the
emissions from existing sources prior to the application for a new
permit so as to represent reasonable further progress. CAA section 173.
The term ``reasonable further progress'' was defined as ``such annual
incremental reductions in emissions of the relevant air pollutant as
are required by this part or may be reasonably required by the
Administrator for the purpose of ensuring attainment of the applicable
national ambient air quality standards by the applicable date.'' CAA
section 171(1). Congress adopted this new provision ``to allow
reasonable economic growth to continue in an area while making
reasonable further progress to assure attainment of the standards by a
fixed date. * * *'' 95 Cong. House Report 294 at *211.
EPA believes that the Agency's experiences under the Clean Air Act
serve as a useful guide for its policy choices with respect to
treatment of new loads of pollutants to impaired waterbodies under the
Clean Water Act. EPA's proposals today are, therefore, similarly
designed to allow continued growth in areas which are not meeting water
quality standards while ensuring that progress toward meeting water
quality standards is not halted or reversed.
iii. What Offsets Would Affected Dischargers Need to Obtain to
Ensure Reasonable Further Progress?
EPA is proposing to require that large new and significantly
expanding dischargers obtain and maintain offsets, i.e., pollutant load
reductions, in general, in the amount of one and a half to one. In
other words, these dischargers would need to obtain and maintain an
offset of least of one and a half times the amount of the new or
additional pollutant loadings they are proposing to discharge. The
specific requirements for an individual discharger would be dependent
upon the type of pollutant for which the waterbody is impaired (which
is also the pollutant the discharger is proposing to discharge), the
source from which the discharger is proposing to obtain and maintain
the offsetting load reductions, and the large new or significantly
expanding discharger itself. In addition, EPA is proposing specific
permitting requirements to implement this offset requirement. (See
discussion below).
In considering the amount by which a proposed discharge should be
offset, EPA considered the burdens associated with achieving the
necessary pollutant load reductions. Based upon the Agency's analysis
of the costs, discussed below in section VI. A, EPA believes that in
most cases an offset in the amount of one and a half times the proposed
discharge is both reasonable and achievable.
a. Could Offsets Be Obtained From Existing Nonpoint Sources?
EPA believes further that this proposed requirement will result in
load reductions from sources that EPA and States authorized to
administer the NPDES program can not regulate under the NPDES program.
Under today's proposal, large new or significantly expanding
dischargers would need to obtain and maintain pollutant load reductions
to compensate for their proposed increases in pollutant loads. These
reductions would need to be obtained from existing point source
discharger(s) or nonpoint sources located on the same waterbody as the
discharge from the new discharger or existing discharger undergoing a
significant expansion. EPA believes the ability to obtain offsets from
nonpoint sources, in addition to point source dischargers, is a crucial
element in ensuring reasonable further progress toward restoring water
quality pending the completion of a TMDL. Nonpoint sources, in some
areas, are significant contributors of pollutants to waters of the
United States, and high pollutant levels persist in many waterbodies.
Furthermore, in many cases it is more cost effective to obtain
significant reductions from non-point sources than to impose more
stringent limitations on point sources.
b. Could the Director Vary the Amount of the Offset?
Today's proposal generally requires that the amount of the proposed
discharge be offset by pollutant load reductions of one and a half
times the increase in mass loadings. The amount of the offset however,
could be varied, at the discretion of the Director. The Director may
determine that an offset greater than one and a half times the proposed
discharge is necessary in order
[[Page 46066]]
to ensure reasonable further progress toward restoring water quality
standards. The Director may also determine that an offset less than one
and a half times, but at least more than, the amount of the proposed
discharge will ensure reasonable further progress. Each of these cases
is discussed below.
EPA recognizes the potential for a significant amount of
uncertainty in both obtaining and maintaining the pollutant load
reductions, depending on the source of the reductions. For example, if
the discharger enters into an agreement with an existing point source,
the discharger would be presumed to have an offset requirement of one
and a half times the amount of the proposed discharge. However, when
entering into an agreement with a nonpoint source, it may be somewhat
more difficult to determine exactly how much reduction will be achieved
and whether the reductions would be maintained over time, due to the
uncertainties regarding the effects of management practices designed to
reduce loads from nonpoint sources. In addition, since nonpoint sources
are not subject to an NPDES permit, the permitting authority may have
less ability to ensure that offsets are implemented and maintained. EPA
notes however that many States have additional authorities beyond those
specified in the CWA, to implement load reductions from nonpoint
sources.
The location of the offsetting source(s) within the impaired
waterbody may also impact the potential for achieving reasonable
further progress in attaining water quality standards. If the source(s)
of the offsetting pollutant load reductions are located at the margins
of the impaired waterbody, the overall impact of the pollutant load
reductions in terms of attaining water quality standards is more
difficult to determine. In such cases, the Director may require that a
greater amount of reductions must be realized and require an offset
greater than one and a half to one. Specifically, the final offset may
be determined by factors such as how great a pollutant load reduction
the offsetting source(s) would actually be able to realize; the
likelihood that the offsetting source(s) will be able to maintain the
offset; and the location of the offsetting source(s) within the
impaired waterbody.
EPA believes allowing the Director the discretion to require an
offset greater than one and a half times the amount the discharger is
proposing to discharge is appropriate in order to compensate for
uncertainties associated with obtaining load reductions from offsetting
sources. EPA also believes this discretion is appropriate to account
for other factors which may include the type of pollutant and the
degree of impairment of the waterbody.
EPA also recognizes that situations may exist where offsets of one
and a half times the proposed discharge are difficult to obtain, such
that an offset of less than one and a half to one (but greater than one
to one) may satisfy the requirement for reasonable further progress.
For example, there may only be a few other sources of the pollutant
causing the impairment, the other sources may discharge a very limited
amount of the pollutant, or it may be very costly to control the
discharge. While EPA believes these situations are limited in number,
allowing the Director the discretion to require an offset less than one
and a half times the proposed discharge but at least more than the
amount of the proposed discharge will still ensure reasonable further
progress toward restoring water quality standards in the interim.
To assure appropriate implementation of the offset provisions by
authorized State permitting authorities, EPA would implement its
oversight role though the permit objection provisions of CWA section
402(d) (The Agency proposes changes to the permit objection regulations
elsewhere in today's notice. Those changes involve EPA's authority to
object to expired and administratively-continued permits). Under CWA
section 402(d), EPA may object to the issuance of an NPDES permit by an
authorized State if the permit would be outside the guidelines and
requirements of the Act. If the issuance of a State NPDES permit to a
source required to obtain an offset would not result in reasonable
further progress toward attainment of water quality standards, EPA
could object to such a permit.
EPA envisions two instances when an objection might be warranted:
specifically, when the State Director would propose to issue a permit
with an offset less than 1.5 and, as discussed further on in today's
notice, when the State Director would waive the offset provision
concluding that the offset would result in further degradation of water
quality. The 1.5 offset criterion is not absolute and the Director has
discretion to require a lesser offset. The exercise of that discretion,
however, would still need to ensure reasonable further progress toward
attainment of water quality standards. If a lesser offset would not
ensure reasonable further progress, today's proposal would maintain the
Agency's authority to object to the issuance of the permit.
Today's notice does not propose changes to the regulatory text
describing the Regional Administrator's grounds for permit objections
because the Agency believes the existing regulations would provide the
bases for such objections. If the Agency were to object to a State
permit for failure to ensure reasonable further progress, the objection
would be based on 40 CFR 123.44(c)(1), (3), (4), (7) and/or (8).
Subsection (c)(1) refers to a permit that fails to apply or ensure
compliance with any applicable requirement of 40 CFR part 123. Though
the 1.5 offset criterion would not be a requirement, today's proposal
would require offsets that ensure reasonable further progress. If an
offset less than 1.5 would not ensure reasonable further progress, the
permit would fail to apply a requirement of 40 CFR part 123 (section
123.25 specifies the NPDES permitting requirements in 40 CFR part 122
that apply to State NPDES programs, including 40 CFR 122.4). Subsection
(c)(3) refers to a permit issued using procedures that fail to comply
with procedures required by the CWA, implementing regulations, or by
the Memorandum of Agreement. If a State did not adequately explain why
an offset less than 1.5 would ensure reasonable further progress, the
issuance of such a permit would not comply with applicable procedural
requirements. Subsection (c)(4) refers to a permit that misinterprets
the CWA or any guidelines or regulations or misapplies them to the
facts. Issuance of a State permit that would not ensure reasonable
further progress would misinterpret the CWA or misapply applicable
requirements. Subsection (c)(7) restates the statutory standard that
the issuance of the proposed permit could not be outside the
requirements of the CWA or implementing regulations. Finally,
subsection (c)(8) refers to the effluent limits of a permit that fails
to satisfy the requirements of 40 CFR 122.44(d) (section 122.44(d)
requires that effluent limits achieve water quality standards). The
issuance of any permit to a source required to obtain an offset would
not satisfy the requirements of 40 CFR 122.44(d) if the permit would
not ensure reasonable further progress toward attainment of water
quality standards.
While the Agency believes that changes to regulatory text are
unnecessary, EPA invites comment on whether to include an explicit
basis for objection in any final rule. The purpose of any explicit
regulatory text would be to clarify that the Agency could object to the
issuance of a State permit to a source required to obtain an offset if
the issuance would not ensure reasonable further progress toward
attainment of water quality standards.
EPA also recognizes there may be limited circumstances where
requiring
[[Page 46067]]
offsets will result in further degradation of water quality, and loss
of an existing use. Therefore, EPA is proposing that the Director also
have the discretion to not require an offset, if it is determined that
any offset would result in further degradation of water quality. Such
degradation may occur, for example, when the sole NPDES discharger,
with a low volume but high concentration of a pollutant such as
phosphorus, discharges to an ephemeral or low flow waterbody which is
currently not attaining the water quality criteria for phosphorus and
where the only other sources of phosphorus are from irrigation return
flows. If the sole discharger negotiates a reduction of irrigation
return flows to offset its phosphorus loads, it may result in increased
ambient phosphorus concentrations due to the loss of volume in the
waterbody, and further degradation of water quality. In circumstances
such as these, although limited and infrequent, EPA believes the
Director should have the discretion to waive the requirement for any
offset in order to prevent further degradation of water quality and the
loss of an existing use. For the reasons described earlier, the Agency
also proposes to retain authority to object to the issuance of a State
permit for a source required to obtain an offset if the State Director
inappropriately waived the offset requirement concluding that the
offset would result in further degradation of water quality.
Finally, the new provision at 40 CFR 131.12(a) proposes that
reasonable further progress for large new dischargers and existing
dischargers undergoing a significant expansion means, at a minimum, an
offset greater than the amount of the proposed discharge. The proposed
regulation, therefore, provides the permitting authority with the
discretion to require additional measures to attain reasonable further
progress. The permitting authority may choose to exercise this
discretion depending upon, for example, the severity of the impairment
of the waterbody, the type of pollutant, or the distance of the offsets
from the new discharge. Such additional measures could include
pollution prevention plans or conservation easements which could ensure
continued reasonable further progress. EPA invites comment on what
measures, in addition to the offset requirement, permitting authorities
should consider requiring of large new dischargers and existing
dischargers undergoing a significant expansion.
EPA believes an offset requirement of one and half times the amount
of the increased loading the discharger is proposing to discharge (with
exceptions) is appropriate and invites comment on whether a different
amount would be better suited to ensuring reasonable further progress
toward restoring water quality standards prior to the approval or
establishment by EPA of TMDLs. EPA invites comment on whether there may
be reasons, other than uncertainty, why the Director may find it
necessary to adjust the offset requirements in amounts greater than one
and half times the proposed discharge. EPA also invites comments on
whether the Director should have the discretion to allow an offset less
than one and half times the proposed discharge, but at least greater
than the amount of the proposed discharge and if so, for what reasons.
One option would be to require an offset at least equal to the amount
of the proposed discharge, but allow the Director the discretion to
determine how much progress beyond a one to one offset is necessary to
ensure reasonable further progress. Finally, EPA invites comment on
whether the Director should have the discretion to waive the
requirement for an offset if any offset would result in further
degradation of water quality. If not, for what reasons and also, if the
concurrence of EPA should be required before the Director makes such a
determination.
iv. Would the Reasonable Further Progress Requirements Apply to
Affected Dischargers Proposing to Discharge to All Waters of the U.S.?
EPA is establishing a new provision at 40 CFR 131.12(a)(1)(ii) that
requires a new discharger or existing discharger undergoing a
significant expansion discharging into a waterbody that does not meet
water quality standards, and for which EPA has not yet approved or
established a TMDL, the pollutant(s) causing the non-attainment to
achieve reasonable further progress toward attaining water quality
standards. Thus, this provision applies to a new discharger or existing
discharger undergoing a significant expansion discharging into any
waterbody of the United States that does not attain water quality
standards (as defined in 40 CFR 131). Where a waterbody receives a
thermal discharge from one or more point sources, impaired means that
the waterbody does not have or maintain a balanced indigenous
population of shellfish, fish, and wildlife. Exceedance of a narrative
criterion in a waterbody means that the waterbody does not attain water
quality standards.
v. Why is EPA Proposing to Subject Only New Dischargers and
Existing Dischargers Undergoing a Significant Expansion to These
Requirements?
EPA is proposing today to establish the offset requirement
discussed above only for large new and significantly expanding
dischargers of the pollutant of concern into an impaired waterbody. EPA
believes that this new requirement is appropriate for these dischargers
because it will enable discharges to occur in impaired waterbodies
while ensuring that progress toward attaining water quality standards
is achieved in those waterbodies. EPA believes that subjecting large
new and significantly expanded dischargers to more stringent water
quality standards is supported by the same logic which led Congress to
establish more stringent technology based requirements for new sources
under other provisions of the CWA.
Given that this offset provision would be a requirement only until
a TMDL is approved or established by EPA for a waterbody not attaining
water quality standards, it makes sense as a practical matter to apply
this requirement only to large sources which are adding new loads of
the pollutant of concern to the waterbody. Existing dischargers are
likely to be in a poorer position to bargain for offsets because they
may not have a realistic option to locate on a different waterbody.
Furthermore, it might be very disruptive to existing dischargers if
they were required to offset their discharge before a TMDL is
established only to possibly receive different permit limits and
conditions once wasteload allocations and a margin of safety are
established in a TMDL. EPA seeks to avoid these disruptions if
possible. Finally, new dischargers will be undertaking construction and
will be in a better position to modify their design so as to minimize
pollution, and thus minimize the amount of their offset.
EPA also believes that subjecting for new and significantly
expanding dischargers to these new requirements is consistent with the
CWA more generally. In its technology-based provisions, the Act
provides a higher standard (best available demonstrated technology
under new source performance standards) for new sources than for
existing sources (best available technology economically available).
Although in this regulation, EPA is addressing new dischargers and
significantly expanding dischargers rather than ``new sources,'' EPA
believes Congress' rationale for its treatment of new sources applies
equally to new dischargers and significantly expanding dischargers.
Congress chose to place more stringent technology based requirements on
new sources both to
[[Page 46068]]
prevent new water quality impairments and because imposing stricter
standards on new sources would be the most efficient means of solving
existing water quality problems. Here, the Agency is proposing to
regulate more stringently two types of dischargers which are adding new
loads of a pollutant of concern to ensure reasonable further progress
toward attaining of water quality standards.
First, consistent with other provisions in EPA regulations, EPA is
proposing to treat new dischargers more stringently than existing
dischargers. An example of such treatment is the extent to which
variances to water quality standards are available to new dischargers
when compared to existing dischargers. See 63 FR 36761. Compliance
schedules have also not been available to new dischargers to the same
extent that they are available for existing dischargers. 40 CFR 122.47.
EPA is proposing to further develop this differential treatment of new
dischargers by creating new provisions at 40 CFR 122.4(j) and
131.12(a)(1)(ii). These provisions together will subject new and
significantly expanding dischargers proposing to discharge into
impaired waterbodies to the new requirements outlined but not existing
dischargers under the same or similar circumstances.
Second, EPA also believes that it is appropriate to extend these
requirements to significant expansions of existing discharges due to
the similar impacts which occur as a result of significant new
pollutant loads. EPA believes this is consistent with the general
approach of the CWA to prevent new water quality pollution problems.
Although these sources are existing sources, their ``significant
expansions'' will have the same or similar effect with respect to
creating new water quality impairments as the truly new source.
Undertaking a significant expansion may provide certain opportunities
for a discharger to achieve efficiencies in solving water pollution
problems, similar to the opportunities available to new sources. EPA's
proposed definition of ``significant expansion'' is discussed above
(see Section A5).
EPA invites comments on whether the requirement for offsets should
apply to both new and significantly expanding dischargers, and reasons
why the requirement should apply to one class of discharger versus
another.
vi. Would All New Dischargers and Existing Dischargers Undergoing a
Significant Expansion Be Subject to These Proposed Requirements?
EPA is proposing today to subject only those new and significantly
expanded dischargers not meeting the definition of a small entity under
the Regulatory Flexibility Act (see 5 U.S.C. 601(6)) to the offset
requirements of this rule. The Regulatory Flexibility Act (``RFA'')
states that the term ``small business'' has the same meaning as the
term ``small business concern'' under section 3 of the Small Business
Act (SBA). This meaning holds unless an agency, after consultation with
the Office of Advocacy of the Small Business Administration and after
opportunity for public comment, establishes one or more definitions of
such term which are appropriate to the activities of the agency and
publishes such definition(s) in the Federal Register. 5 U.S.C. 601(3).
EPA has not proposed to establish a different definition of the term
for this proposed rule.
The SBA defines ``small-business concern'' as one which is
independently owned and operated and which is not dominant in its field
of operation. 15 U.S.C. 632. Pursuant to the SBA, the Small Business
Administration has specified additional detailed definitions or
standards by which a business concern may be determined to be a small
business concern. Also under the RFA, the term ``small organization''
means any not-for-profit enterprise which is independently owned and
operated and is not dominant in its field. This meaning holds unless an
agency establishes, after opportunity for public comment, one or more
definitions of such term which are appropriate to the activities of the
agency and publishes such definition(s) in the Federal Register. 5
U.S.C. 601(4). The term ``small governmental jurisdiction'' means
governments of cities, counties, towns, townships, villages, school
districts, or special districts, with a population of less than fifty
thousand. This meaning also holds unless an agency establishes, after
opportunity for public comment, one or more definitions of such term
which are appropriate to the activities of the agency and which are
based on such factors as location in rural or sparsely populated areas
or limited revenues due to the population of such jurisdiction, and
publishes such definition(s) in the Federal Register. 5 U.S.C. 601(5).
Again, EPA has not proposed alternative definitions for purposes of
this rule. Finally, the term ``small entity'' has the same meaning as
the terms ``small business'', ``small organization'' and ``small
governmental jurisdiction'' defined in the RFA. 5 U.S.C. 601(6).
EPA is proposing to limit the scope of this new provision because
it is a new requirement which is needed only in the interim before
TMDLs are approved or established by EPA. Also, such narrowed coverage
is more likely to ensure development of a successful market for
pollutant trading.
In today's proposal, EPA is requiring large (i.e., not meeting the
definition of a small entity under the Regulatory Flexibility Act (see
5 U.S.C. 601(6)) new and significantly expanding dischargers to offset
any increase in mass loadings. EPA believes this is an important step
toward achieving the CWA goal to ``* * * restore and maintain the
chemical, physical and biological integrity of the Nation's waters.''
Section 101(a). In exercising its discretion to impose this new
requirement on large dischargers, EPA notes that all dischargers will
continue to need permit limits that derive from and comply with water
quality standards (see 40 CFR 122.44(d)). In evaluating the significant
number of the nation's waters on State section 303(d) lists, and the
amount of time necessary for States to establish and implement TMDLs,
EPA concluded that in the interim period before a TMDL is approved or
established by EPA, it is necessary to establish a new requirement in
an effort to ensure reasonable further progress toward attaining water
quality standards, consistent with the goals of the Act. The
requirement is thus, both incremental and interim, and at this time EPA
is choosing to impose it only on those dischargers the Agency believes
are in the best position to achieve offsets.
a. How Would This Proposal Facilitate the Establishment of Trading
Markets?
In developing these revisions to the federal antidegradation
policy, EPA considered the most likely approach by which to establish a
trading mechanism between new and existing dischargers undergoing a
significant expansion, and existing sources of pollutants. In effect,
EPA is seeking to establish a market for pollutant trading, in the
hopes of creating more effective and efficient mechanisms for restoring
water quality. EPA believes that requiring offsets from facilities
which are not small entities, as defined by the Regulatory Flexibility
Act, will focus the initiation of such a market on those entities which
have the greatest likelihood of securing offsets. Large dischargers are
more likely to have access to data and information, both environmental
and economic, that can be used in identifying, analyzing and allocating
offsets. Large dischargers are also more likely to have the resources
to devote to negotiating offsets with other entities.
[[Page 46069]]
EPA recognizes that establishing the framework for such a market in
pollutant trading presents many challenges. Nonetheless, EPA believes
that creating the offset requirement would provide a valuable mechanism
for ensuring reasonable progress toward attaining water quality
standards. EPA believes the expenditure of resources to establish a
market in pollutant trading will be compensated for by such factors as
reduced overall costs in meeting water quality standards, the ability
to locate a new enterprise or expand an existing enterprise, and
increased flexibility in designing pollution control systems. Such a
market, once established, would also provide other, more efficient
opportunities for improving water quality, as States and Tribes
implement watershed protection programs. EPA has developed draft
guidance on how to conduct watershed-based trading which addresses the
benefits and types of trades and how trading can be implemented to
attain and maintain water quality standards. Draft Framework for
Watershed-based Trading, EPA 800-R-96-001, May, 1996.
Trading in pollutant discharges is not a retreat from the CWA
goals. It can be a more efficient, market driven approach to meeting
these goals. EPA supports only trades that meet CWA requirements.
Through trading, EPA seeks to encourage innovative approaches and the
flexibility to implement load reductions in ways that maximize water
quality improvements and minimize costs. In allowing offsets as the
means to ensure reasonable further progress toward attaining the water
quality standard, EPA is seeking to generate environmental benefits in
the most cost-effective manner.
EPA invites comments on whether the requirement for offsets as a
means of ensuring reasonable further progress should be limited to
entities which are not small entities as defined by the Regulatory
Flexibility Act. EPA also invites comments on extending this
requirement to other entities which may be small entities under SBREFA.
C. How Would EPA Ensure Any Needed Changes to the Antidegradation
Policies in State, Territorial and Tribal Water Quality Standards?
With this notice of proposed rulemaking, EPA is initiating
development of Federal water quality standards pursuant to section
303(c)(4)(B) of the CWA. EPA intends to promulgate, as the EPA
Administrator determines necessary, Federal water quality standards for
any State, Territory or Tribe which does not adopt or already have in
place water quality standards which include provisions consistent with
40 CFR 131.12(a)(1)(ii) as ultimately promulgated. EPA believes such a
Federal promulgation could be necessary to ensure consistent,
nationwide application of any final provisions of 40 CFR
131.12(a)(1)(ii) in the period before the establishment of TMDLs for
waterbodies that do not meet water quality standards. EPA is today
providing notice of the Agency's intent for the Administrator to make a
determination whether a Federal promulgation is necessary for any
State, Tribe or Territory. EPA will delay this determination to allow
States, Territories and Tribes the opportunity to adopt their own water
quality standards. Any State, Territory or Tribe which expeditiously
acts to adopt standards consistent with the Agency's final promulgation
of this section would not be included in the proposed Federal water
quality standards. Further, EPA would initiate withdrawal of any
Federal promulgation for a State, Territory or Tribe that adopts
standards consistent with 40 CFR 131.12(a)(1)(ii).
EPA acknowledges that many States, Territories and Tribes may face
difficulties in completing adoption of water quality standards in the
time frame envisioned by the Agency. Nonetheless, EPA believes it is
important to have this mechanism firmly established in State,
Territorial or Tribal water quality standards in order to ensure
reasonable further progress toward restoring designated uses in the
period of time prior to the completion of TMDLs. This requirement would
only apply prior to the establishment and implementation of the TMDL
for a waterbody not meeting water quality standards.
D. How Would These Changes Be Implemented Through NPDES Permits?
New dischargers or existing dischargers undergoing a significant
expansion are required, under 40 CFR 122.4(i), to have permit limits or
conditions that ensure that they will not cause or contribute to a
violation of water quality standards. A new discharger or an existing
discharger undergoing a significant expansion required to offset their
proposed discharge pursuant to 40 CFR 131.12(a)(1)(ii), would also be
subject to additional requirements relating to the mechanics of
obtaining and maintaining an offset. EPA believes that these
additional, new requirements are necessary to ensure that the offsets
will in fact be realized. Each of these requirements are specified in a
new section 40 CFR122.4(j)(2), and explained in detail below.
1. Must the New or Significantly Expanding Discharger Obtain an Offset
of the Same Pollutant(s) the New or Significantly Expanding Discharger
Would Be Required To Offset?
Proposed 40 CFR 122.4(j)(2)(i) would require the discharger seeking
an offset to obtain the pollutant load reductions from one or more
sources of the pollutant(s) for which the waterbody is impaired. This
pollutant(s) must also be the same pollutant(s) the new or existing
discharger undergoing a significant expansion would be required to
offset. For example, the waterbody may be impaired by both copper and
lead. If a new discharger wishes to discharge copper (and not lead),
the discharger must obtain the requisite amount of pollutant load
reductions from a source(s) that is currently discharging copper into
the waterbody.
EPA recognizes that there may be circumstances where reasonable
further progress toward attaining water quality standards could best be
served by allowing the Director the discretion to offset a new or
expanded discharge of one pollutant with a load reduction of a
different pollutant for which the waterbody is also impaired. EPA,
however, is concerned with the technical difficulties of implementing
such an option and therefore, is not proposing it. EPA requests comment
on the possibility of allowing such discretion and on how the technical
difficulty of determining an appropriate offset for a different
pollutant could be resolved.
2. From What Geographic Area Would the Pollutant Load Reductions Need
To Be Obtained?
Proposed 40 CFR 122.4(j)(2)(ii) would require the discharger to
obtain the pollutant load reductions from one or more sources located
on the same waterbody as the discharge from the new discharger or
existing discharger undergoing a significant expansion. To determine if
a source(s) is located on the same waterbody, for purposes of obtaining
an offset under 40 CFR 131.12(a)(1)(ii), there would need to be a
direct hydrological connection between two sources. For example, there
must be a direct hydrologic connection between the outfall of the
existing point source where the reductions are realized and the outfall
of the proposed discharge.
States should be able to assist in the determination of whether a
source is located on the same waterbody. States often identify their
waters and assign waterbody identification numbers to specific
hydrologic units, often called
[[Page 46070]]
segments. States are also required to identify all waterbodies not
attaining water quality standards for the purposes of establishing a
TMDL. For the purposes of section 303(d) listing, a waterbody pollutant
combination will have a unique identifier so that the status of each
listed waterbody can be tracked over time. States often delineate these
segments based on hydrologic features, such as the presence of a dam,
the confluence of two rivers, or gradations of salinity in an estuary.
If a source is located on a waterbody with the same identification
number, this would be a good indication that it is located on the same
waterbody for purposes of obtaining an offset. EPA invites comment on
other conditions that would identify whether a source is located on the
same waterbody. EPA believes this requirement is reasonable, as is 40
CFR 122.4(j)(2)(i), because it ensures that the results from the offset
will be effective in benefitting waterbodies not attaining water
quality standards for a particular pollutant(s).
EPA intends the offset to result in reasonable further progress
toward attaining water quality standards. The most appropriate
hydrologic unit, and therefore geographic area within the same
waterbody, depends on site-specific hydrologic conditions such as water
chemistry, ecological parameters, and the location, number and types of
sources already discharging to that waterbody. An offset can be
obtained from a source located downstream from the new or significantly
expanding discharger provided that source is discharging to the same
body of water. An offset would not be appropriate if obtained outside
of the impaired waterbody in which the new or significantly expanded
discharger is located. EPA would also like comment on whether sources
providing pollutant load reductions for offsets, should be located only
upstream of the new or significantly expanding source.
EPA recognizes that air deposition contributes to some of the water
quality problems that exist today. EPA is considering whether to allow
an offset from an air pollution source emitting the same pollutant the
new or significantly expanded discharger is proposing to discharge. EPA
would consider this only where the air pollution source directly
affects the waterbody in the vicinity of the new or significantly
expanded discharge. EPA invites comment on how some of the additional
requirements related to obtaining an offset would be met if EPA allowed
dischargers to obtain offsets from an air pollution source(s). In
particular, EPA invites comment on whether the requirement in 40 CFR
122.4(j)(2)(v) (discussed below) to modify an offsetting source's NPDES
permit to reflect the required reductions should be expanded to require
permit modifications when offsets are obtained from permitted air
pollution sources. 40 CFR 122.4(j)(2)(v) would require the permit
regulating the source from which the offset is obtained to be modified
to reflect the pollutant load reductions.
3. Could the Pollutant Load Reductions Come From a Source With Existing
Requirements To Reduce its Loads?
Proposed 40 CFR 122.4(j)(2)(iii) would require that the pollutant
load reductions be the result of pollutant control measures implemented
by, or secured and assured by, the new discharger or existing
discharger undergoing a significant expansion. To satisfy this
requirement, the discharger must obtain the reductions from one or more
sources discharging the pollutant(s) of concern to the same waterbody.
If the discharger wishes to obtain the reductions from another source
in the same waterbody, the pollutant control measures must be the
result of an entirely new agreement and/or requirement for the
offsetting source. In other words, if the offsetting source, for any
reason other than to satisfy the proposed discharger's offset
requirements, was already required to construct or install the
pollutant control measures, the proposed discharger could not receive
credit for the resulting reductions. EPA believes this requirement is
reasonable because the load reductions would be a new requirement on
the offsetting source intended to result in reasonable further progress
toward attaining water quality standards where such progress was not
otherwise required.
4. When Would the Pollutant Load Reductions Need To Be Obtained?
Proposed 40 CFR 122.4(j)(2)(iv) would require the discharger to
achieve the pollutant load reductions on or before the date the new or
significantly expanding discharger begins to discharge. For reductions
to be achieved on or before the discharger begins to discharge, the
pollutant control measures would have to be in place. The discharger
would also need to satisfy any requirements that the Director
determined were necessary to demonstrate that the pollutant control
measures were in place and the requisite amount of pollutant load
reductions are and will continue to be realized. Such requirements
might include sampling, either at the discharge point or instream, and
reporting the results of those samples both before and after the
pollutant control measures were put in place. The results would need to
show that the requisite amount of pollutant load reductions are and
will continue to be realized. EPA invites comment on other ways the
discharger may make this demonstration.
EPA is also proposing to give the Director the discretion to not
require that the pollutant load reductions be obtained on or before the
date the discharge commences. The Director would have this discretion
in circumstances where the Director determines that a different time
frame for obtaining and maintaining the offset would best serve the
goal of reasonable further progress toward attaining water quality
standards. One example of such circumstances is where it is not
possible for the new or significantly expanding discharger to
demonstrate that the pollutant load reductions are being realized on or
before the date the discharge commences. An example of such a case is
where the source of the offset involves a reforestation effort. In this
instance, it will take time to produce reduction results because of the
time required for trees and/or shrubs for example, to grow.
In exchange for not requiring that the offsets be achieved on or
before the date the discharge commences, the Director must require that
the discharger obtain pollutant load reductions by an amount of at
least twice the amount of the new or expanded discharge. The Agency
believes this requirement is reasonable because in exchange for the
degree of uncertainty involved in whether the pollutant load reductions
will in fact be realized, the discharger will be able to discharge
prior to obtaining the reductions. In addition, it ensures that the
Director's discretion will be exercised in a way that best serves the
goal of reasonable further progress toward attaining water quality
standards.
Also, to provide assurances that the offsets will be achieved there
would need to be an enforceable and defined schedule with milestones
identified and sufficiently laid out in the proposed discharger's
permit. The use of this discretion would not be permitted in instances
where the TMDL is scheduled to be established before the offset is
fully realized. EPA invites comment on this aspect of the proposal
including whether the Agency should provide for these exceptions to the
requirement that the pollutant load reductions be achieved on or before
the date the discharge commences.
[[Page 46071]]
5. How Long Would the Pollutant Load Reductions Need To Be Maintained?
Reductions would also need to be maintained until the TMDL for the
waterbody is approved or established by EPA or until the new or
significantly expanding discharger ceases to discharge. Where a TMDL
has been approved or established by EPA, the new or significantly
expanding discharger would need to maintain the reductions until its
permit contained effluent limits or conditions consistent with its WLA
in the TMDL. To maintain the reductions, regular monitoring reports
would need to be submitted to ensure their continued achievement.
Depending on the source(s) from which the discharger is obtaining the
reductions (see discussion below under sections D6 and D7), the reports
might be submitted by either the discharger or the offsetting
source(s). The permitting authority would determine the appropriate
number of samples and how often monitoring reports would need to be
submitted. The Agency emphasizes that it is not sufficient for the TMDL
to be approved or established by EPA; the new or significantly
expanding discharger would also need to have limits or conditions in
its NPDES permit that reflect its WLA in the TMDL. At that point, the
discharger's WLA under the TMDL would supercede the offset
requirements.
Also, if the discharger stops discharging prior to the time a TMDL
for the waterbody is approved or established, the discharger would no
longer be required to maintain the reductions. For example, if a new
construction operation is expected to last eight months and the TMDL
will not be established for six years, the new discharger (construction
operation) need only maintain the reductions for the time in which the
discharge from the operation is ongoing (eight months).
EPA believes this requirement is reasonable because the offset is a
condition of being permitted to discharge. Therefore, it should be in
place on or before the discharger starts to discharge, unless this
requirement is modified by the Director under 40 CFR
122.4(j)(2)(iv)(B), and remain in place until the discharger either
stops discharging or until the TMDL is established and implemented with
respect to that discharger. Again, EPA intends that this requirement be
an interim measure and notes that the TMDL process is the appropriate
means of determining WLA/LAs that are necessary to attain and maintain
water quality standards. EPA does, however, invite comment on requiring
the offset to be maintained indefinitely (before and after the TMDL is
established). Requiring the offset to be maintained both before and
after the TMDL would prevent reintroducing pollutants to a waterbody
where they have already been removed, although this issue should be
addressed in the development of the TMDL itself.
6. What Would Be Required When the Source of the Offset Is an Existing
Point Source?
Proposed 40 CFR 122.4(j)(2)(v) would require that where a
discharger obtains pollutant load reductions from an existing point
source(s), as defined in the CWA, that existing point source(s)'s NPDES
permit would need to be modified to reflect the reductions. The
permitting authority would also need to consider the need for any
additional monitoring and reporting requirements to ensure that the
reductions are being maintained. This modification would need to take
place on or before the date the new permit is issued to the proposed
discharger. EPA believes this requirement is reasonable because
requiring that the permit for the existing point source(s) be modified
to reflect the reductions creates a level of accountability. This
accountability stems from the reductions being contained as permit
limits in an enforceable permit. If the existing point source(s)'s
discharge monitoring reports do not show that the reductions are being
realized, the point source(s) would not be in compliance with its
permit and thus, would be subject to an enforcement action.
The Agency again, notes that because the existing point source(s)'s
permit would be modified to reflect the reductions, the offset
requirement would be accounted for as a result of that modification.
Therefore, it would not be necessary to incorporate the offset
requirements in the new or significantly expanding discharger's permit.
The Agency recognizes that there may be additional costs and delays
associated with modifying the offsetting source's permit to reflect the
reductions and therefore, requests comment on suggestions for a
streamlined approach to accounting for the offset requirements. In
particular, the Agency invites comment on incorporating the offset
requirement in the new or significantly expanding discharger's permit
rather than the modifying the existing point source(s)'s permit.
Today's proposal would require the existing, offsetting point
source(s)'s permit to be modified to reflect the pollutant load
reductions on or before the date a permit is issued to the new or
significantly expanding discharger. EPA notes that there may be a time
period during which the existing offsetting point source(s)'s permit
has been modified but the proposed discharger has not yet begun
discharging. EPA expects that this time period, if any, would be short-
term. However, if there is a significant delay before the new or
significantly expanding discharger starts to discharge, one option
would be to place alternate effluent limits in the existing
discharger's permit. One limit would be applicable before the proposed
discharger starts to discharge and the other limit would be applicable
after the proposed discharger starts to discharge. EPA invites comment
on the idea of placing alternate effluent limits in the permit for the
offsetting source.
EPA also recognizes that the source from which the offset is
obtained may be discharging at levels less than their current permit
limits. In these cases, the baseline used to calculate the appropriate
reductions would be the offsetting source's actual and current loads
not their current permit limit. It is EPA's intent that the offsets
result in corresponding reductions in actual loads despite the
existence of a higher permit limit. The offsetting source's permit
would then need to be modified to reflect the corresponding reductions
in actual loads. This does not necessarily mean that the permit limits
would be adjusted to match the new actual load. Sources often target a
discharge level below the permitted amount in order to ensure
continuous compliance. In fact, EPA believes that well operated sources
should do this. It is likely that a source which was discharging below
its original permit limits would continue to target a discharge level
below any new permit limits designed to implement an offset. The exact
permit limits necessary to implement the offset would be determined on
a case-by-case basis by the permitting authority.
7. What Would Be Required When the Source of the Offset Is an Existing
Nonpoint Source?
Proposed 40 CFR 122.4(j)(2)(vii) would require that where a
discharger obtains pollutant load reductions from an existing nonpoint
source(s), the discharger's NPDES permit would need to contain any
conditions necessary to ensure that the load reductions from the
nonpoint source will be realized. These include such things as the
offset requirements themselves and any accompanying monitoring and
reporting requirements to ensure continued achievement of the pollutant
load
[[Page 46072]]
reductions (from the nonpoint source(s)). The Director may also wish to
establish alternate effluent limits in the permit for the new
discharger that would become effective if and when the pollutant load
reductions are not maintained. EPA invites comment on whether to
require the permitting authority to include alternate effluent limits
in the new or significantly expanded discharger's permit.
EPA believes the requirement in proposed 40 CFR 122.4(j)(2)(vi) is
reasonable for the same reasons stated above for 40 CFR 122.4(j)(2)(v).
Requiring the offset and accompanying monitoring and reporting
requirements to be placed in the proposed discharger's permit creates a
level of accountability as a result of being contained in an
enforceable permit. If the discharger's monitoring reports do not show
that the reductions are being realized or if the discharger is not in
compliance with an alternate permit limit, the discharger would not be
in compliance with its permit and would be subject to an enforcement
action. Assuming there is an enforceable contract between the new or
significantly expanding discharger and the nonpoint source (the
agreement under which the pollutant load reductions will be achieved
and maintained), in the event that there is a lack of reported
reductions which is at the fault of the nonpoint source, the discharger
should have an enforceable remedy against the nonpoint source (e.g.,
under contract law). Contract law may allow the new or significantly
expanding discharger to recover costs or other remedies they negotiated
in their agreement (any remedies the new or significantly expanding
discharger may have against the nonpoint source would be a product of
State contract law, outside of the NPDES permitting context).
8. How Would Offsets Be Obtained From Sources Seeking Coverage Under a
General Permit?
Determining whether and in what amount an offset would be required
from dischargers seeking coverage under a general permit would
necessarily differ from the same determinations for dischargers
applying for individual permits. Several issues arise with respect to
dischargers seeking coverage under a general permit when the discharge
would be to a waterbody not attaining water quality standards. The
first issue is whether and how the discharger would know if the
receiving water is one that does not meet water quality standards. Most
discharges seeking coverage under a general permit are required to
submit a notice of intent (NOI) form to claim authorization to
discharge. However, there is typically no information requested on the
NOI, other than identifying the latitude and longitude of the facility
that would help to identify the water quality status of the receiving
water. The second issue is whether the discharger and/or permitting
authority would know if the discharger's proposed effluent would
contain the pollutant(s) causing the impairment. The third issue is if
the pollutant(s) of concern is detected, how would the permitting
authority obtain the information indicating the amount of that
pollutant(s) the discharger is proposing to discharge. An NOI form
typically does not request information on the pollutant(s) expected in
the discharge. Absent any explicit information requirement for NOI
forms, it is unlikely that the discharger or permitting authority could
determine whether a discharger would be required to obtain an offset
under proposed 40 CFR 131.12(a)(1)(ii). EPA invites comment on how to
fill this information need.
i. What Options Is the Agency Considering?
One option that the Agency is considering to fill this information
need would be to amend the general permit regulations at 40 CFR
122.28(b)(2)(ii) and 40 CFR 122.28(b)(2)(v) to require the general
permit applicant to provide this additional information. Section
122.28(b)(2)(ii) discusses the contents of an NOI. For purposes of
notifying the permitting authority about the localized attainment of
water quality standards and to determine whether a proposed discharger
would be required to obtain an offset, EPA is considering whether the
following language should be included in the general permit provision:
``New dischargers or existing dischargers undergoing a
significant expansion (as defined in 40 CFR 122.2) but not those
that are small entities (as defined in 5 U.S.C. 601(6)) (see
discussion under proposed 40 CFR 131.12) must determine whether the
receiving water meets water quality standards. Operators that are
discharging or proposing to discharge to a waterbody that does not
meet water quality standards and for which a TMDL has not been
established and approved must certify that the discharge does not
add the pollutant(s) for which the waterbody is impaired.
Dischargers that do add the pollutant(s) for which the waterbody is
impaired and for which a TMDL has not been established or approved
must apply for an individual permit and are subject to the
requirements in 40 CFR 122.4(j).''
EPA notes that the Director already has authority to require a general
permit applicant to apply for and obtain an individual permit under 40
CFR 122.28(b)(3)(i).
To determine whether the receiving water is impaired, the applicant
could contact the appropriate State agency or check the State's 303(d)
list of waters not attaining water quality standards. The State may
have several ways for the public to access the information in the
303(d) list, including access via the World Wide Web.
The supplemental certification could request the applicant to
provide information on the expected contents and amount of pollutant(s)
in its proposed discharge. This type of information would assist the
applicant and the permitting authority in identifying whether the
pollutant of concern is in the proposed discharge and if it is, to
determine what, if any, offset is required. The contents of this
supplemental certification could be similar to the contents of Item V
on Form 2D but focused on the pollutant(s) for which the waterbody is
impaired. Some new applicants for EPA-issued individual permits use
NPDES application Form 2D. EPA Form 3510-2D (9/86). The permit
application regulations at 40 CFR 122.21(k)(5) (as reflected at Item V
on Form 2D) require each applicant to estimate and report data on the
pollutants that the applicant expects to discharge (per outfall).
Sampling and analysis are not required for purposes of the application
requirement. If data from such analyses are available, however, then
that data should be reported. Section 122.21(k)(5) and Parts A-C of the
application require the applicant to provide an estimate of the maximum
daily and average daily value for certain identified pollutant(s). This
estimate is based on the applicant's determination of whether a
pollutant will be present in their discharge. The applicant could base
this determination on knowledge of the proposed facility's raw
materials, maintenance chemicals, intermediate and final products,
byproducts, and any analyses, if available, of their effluent or of any
similar effluent.
Other sources upon which to base the estimate could include
available in-house or contractor's engineering reports and any other
studies performed on the proposed facility. Also, if an effluent
guideline applies to the facility or similar facilities, then the
development document to the effluent guideline may provide additional
information. If there is an applicable effluent guideline and the
pollutant(s) of concern is not addressed in the guideline, however,
this would not be conclusive evidence that the pollutant(s) of concern
is not present. If
[[Page 46073]]
the applicable effluent guideline does address the pollutant(s) of
concern, that recognition should be considered as a rebuttable
presumption that the pollutant(s) of concern will, in fact, be present
in the discharge.
EPA is also considering another option to fill this information
need. This option would require these dischargers to submit a
supplemental certification that they have already obtained and are
continuing to maintain the requisite offset requirements. However, EPA
has concerns about how this would work. In particular, EPA is concerned
with how this permit applicant would determine the amount of the
pollutant(s) of concern in its proposed discharge and in turn,
determine the amount of required offset. When determining the proper
offset required in an individual permit, the Director would have
discretion to consider a number of variables. For example, if the
applicant decides to obtain offsets from a nonpoint source, maintenance
of the offset could remain highly uncertain. To compensate, the
Director could appropriately require the applicant to obtain and
maintain a greater offset (see discussion above in section
(B)(3)(iii)(b)). Given discretionary considerations such as these,
offset determinations may be difficult to implement for general
permittees. EPA requests comments on how such compensation could be
implemented, where necessary, for general permit applicants under this
option.
EPA is considering a third option for general permittee offsets.
This option would allow the general permits themselves to contain
alternative sets of requirements depending on whether the discharge
would be to a waterbody meeting water quality standards or a waterbody
not meeting water quality standards. For permitted discharges to
waterbodies not meeting water quality standards, requirements would be
more stringent and/or prescriptive than those required for discharges
to waterbodies that do meet water quality standards. Some general
permits currently provide such differing requirements. For purposes of
satisfying an offset requirement, an option might be to establish the
more stringent and/or prescriptive requirements for discharges into
impaired waterbodies in lieu of an individualized offset. The
reductions needed to ensure reasonable further progress toward meeting
water quality standards would be ``built in'' to the general permit. As
with the second option discussed above, the permitting authority would
not be able to tailor the offset requirements to the specific
circumstances and discharge of the individual new or significantly
expanding discharger. However, this option could allow the permitting
authority to establish conditions in the general permit necessary to
ensure that collectively, new and significantly expanding dischargers
obtained offsets sufficient to achieve reasonable further progress
toward attaining water quality standards. EPA invites comments on
whether to allow more stringent and/or prescriptive requirements for
discharges into impaired waterbodies in the general permit in lieu of
requiring an individual permit.
General permitting also creates complications regarding the
requirements in 40 CFR 122.4(j)(2). In particular, the Agency
anticipates it would be difficult to implement the specific
requirements applicable when offsets are obtained from an existing
nonpoint source(s). In these cases, an individual permit would need to
include conditions necessary, including the offset requirements and any
accompanying monitoring and reporting requirements, to ensure continued
achievement of the reductions. EPA invites comment on how this
requirement should be addressed in general permits.
EPA requests comment on these three options as well as other
possible approaches for satisfying the offset requirements for new or
significantly expanding dischargers applying for a general permit and
proposing to discharge into impaired waterbodies. In particular, EPA
requests information on the burdens these options impose on regulated
entities and State permitting authorities. EPA also requests comment on
the water quality benefits of the three options and on whether the
definition of a significant expansion should be different for general
permittees than for individual permittees.
ii. What If a Notice of Intent Form Is Not Required?
General permitting presents additional implementation problems when
an NOI form is not required. One option would be to amend 40 CFR
122.28(b)(2)(v), which authorizes the Director to allow certain
dischargers to be covered under a general permit without submitting an
NOI. This section also identifies some sources for which the Director
does not have this discretion. EPA is considering including new
dischargers and existing dischargers undergoing a significant expansion
(but not those that are '`small entities'' as defined in 5 U.S.C.
601(6)), in the list of sources for which the Director would not have
the discretion to waive the submission of an NOI. EPA invites comment
on how this additional concern might be addressed.
iii. Who and Under What Circumstances Would Need To Submit a
Supplemental Certification?
EPA recognizes that the language suggested above for an amendment
to 40 CFR 122.28(b)(2)(ii) would require only new dischargers and
existing dischargers undergoing a significant expansion that are not
small entities as defined in 5 U.S.C. 601(6) to provide an additional
certification for discharges to a waterbody not attaining water quality
standards. Not requiring all new dischargers and existing dischargers
undergoing a significant expansion to make this certification is
consistent with the proposed requirements at 40 CFR 131.12(a)(1)(ii)
because the offset requirement would only apply to those dischargers
who are not considered ``small entities'' (as defined in 5 U.S.C.
601(6)). Dischargers who do not fall within the definition of a small
entity would be able to seek coverage under a general permit.
iv. How Would Offsets Be Determined for Dischargers Regulated
Solely by BMPs?
Once it is determined that an offset is required, the amount of
offset required must be determined as well. This issue is particularly
important for applicants seeking coverage under a general permit. This
issue involves how to determine the appropriate offset requirements (or
offset equivalents) for dischargers regulated solely by best management
practices (BMPs). For example, would it be appropriate to require more
stringent BMPs, or additional ``offsetting'' BMPs from other sources in
lieu of a pound-for-pound offset? EPA invites comment on how to address
this issue as well.
E. Additional Proposed Modifications to Related NPDES Provisions
1. How Is EPA Proposing To Modify the Water Quality-Based Permitting
Regulations?
EPA is today proposing to include the phrase ``State
antidegradation provisions'' in its water quality-based permitting
regulations at 40 CFR 122.44(d)(1). Section 122.44 contains the
requirements for establishing limitations, standards and other permit
conditions in NPDES permits necessary to ensure that NPDES permits are
protective of water quality standards. Including this phrase is
clarifying only and not intended to create a substantive change.
Including this phrase in these provisions gives added notice and
clarification to EPA's longstanding policy which is well understood by
the
[[Page 46074]]
States and the public, including regulated entities, that
antidegradation policies and implementation procedures are required
elements of State water quality standards.
2. How Is EPA Proposing To Modify the Regulations Pertaining to the
Statement of Basis and Permit Fact Sheet?
EPA is also proposing to change both 40 CFR 124.56 and 124.7. EPA
believes this is necessary in light of the proposed changes to 40 CFR
122.4(j) and 131.12. Section 124.56 lists specific items which must be
placed in the fact sheet required by 40 CFR 124.8 of the NPDES
regulations. EPA believes it is necessary to include, in the fact
sheet, an explanation of how and why any decision was made by the
Director with respect to any offsets required under 40 CFR 131.12.
These include such things as the amount of the proposed discharge the
new or significantly expanding discharger is required to offset as well
as any monitoring and reporting requirements. Section 124.7 requires
that a statement of basis be prepared in all situations where a fact
sheet is not required. The contents of a statement of basis are similar
to that of a fact sheet. EPA believes including this information in the
fact sheet or in the alternative, the statement of basis, is
appropriate for several reasons. The decisions regarding any offset
will be dependent upon the specific facts and circumstances of a given
scenario and therefore, those facts and circumstances should be made
apparent. The public has a right to know how and why these decisions
were made. EPA, to facilitate its authority to review permits, needs
this information as well. This information is necessary for any appeals
brought against the issuance of the permit or conditions therein
contained.
III. Proposed Authority To Designate Additional Sources of
Pollutants as Subject to the NPDES Program
The NPDES regulations, in several provisions and under certain
circumstances, allow the permitting authority and/or EPA to subject
certain previously non-designated sources to NPDES program
requirements. EPA established these jurisdictional regulations in 1973
when the Agency and the States focused permitting resources primarily
on continuous discharges, for example, industrial and municipal
sources. Also, in the early stages of CWA implementation, the Agency
and the States focused on implementation of technology-based standards.
At that time, EPA attempted to limit the scope of the NPDES permitting
program to certain types of point sources. The D.C. Circuit rejected
that attempt, however, and explained that EPA could not exempt point
sources from the NPDES program. NRDC v. Costle, 568 F.2d 1369, 1377
(D.C. Cir. 1977). Although the Court rejected this attempt, it did
recognize the Agency's discretion to define ``point source'' and
``nonpoint source.'' The existing NPDES regulations identifying animal
production and silvicultural sources represents an early attempt to do
so.
Today EPA is proposing certain changes to the NPDES regulations
regarding designation of point sources for regulation under the NPDES
permitting program. These point sources include discharges from animal
production and silvicultural activities. EPA is proposing explicit
language describing its authority, in States with approved NPDES
programs, to designate animal feeding operations (AFOs) and aquatic
animal production facilities (AAPFs) as sources subject to NPDES
program requirements on a case-by-case basis. EPA regulations currently
provide that ``the Director'' may, under certain circumstances,
designate such facilities as point sources subject to NPDES
requirements. The term ``Director'' is defined as the EPA Regional
Administrator or the State Director, as the context requires, or an
authorized representative. See 40 CFR 122.2. The definition explains
that when there is an approved State program, ``Director'' normally
means the State Director but that in some circumstances, EPA retains
the authority to take certain actions even when there is an approved
State program. Today's proposal includes explicit language describing
EPA's authority, under certain conditions, to designate animal
production facilities as sources subject to NPDES permitting. Today's
proposal would also modify the regulation that identifies silvicultural
point sources.
A. How Would Animal Feeding Operations and Aquatic Animal Production
Facilities Be Affected by Today's Proposal?
Some of the sources that would be affected by today's proposal
include animal feeding operations (AFOs) and aquatic animal production
facilities (AAPFs) located in States authorized to administer the NPDES
program. In a 1995 guidance document, entitled ``Guide Manual on NPDES
Regulations for Concentrated Animal Feeding Operations,'' EPA stated
that in authorized States, only the State Director may designate an AFO
as a concentrated animal feeding operation (CAFO). Today, EPA proposes
to revise the regulations to state that EPA may, under certain
circumstances, designate AFOs as CAFOs and also designate AAPFs as
concentrated aquatic animal production facilities(CAAPFs), in NPDES-
authorized States. The revised regulations would facilitate EPA's
provision of reasonable assurance that EPA-established TMDLs will be
implemented where States fail to establish an approvable TMDL.
This proposal applies to aquatic animal production facilities and
not aquaculture projects. Although both types of operations produce
aquatic livestock, aquatic animal production facilities differ from
aquaculture projects. Aquaculture projects confine aquatic stock within
jurisdictional waters of the United States. An aquatic animal
production facility does not confine aquatic stock in jurisdictional
waters of the United States. The aquatic area of confinement (e.g.,
manmade pond, raceway, etc.) may, however, discharge to jurisdictional
waters of the United States. Aquaculture is specifically addressed in
the CWA. CWA section 318. The statute does not specifically address
aquatic animal production outside of waters of the United States,
however, it is addressed in EPA regulations, as discussed above.
1. How Do These Sources Currently Become Subject to the NPDES Program?
Under existing regulations, concentrated animal feeding operations
and concentrated aquatic animal production facilities are subject to
the NPDES program. One situation in which an animal feeding operation
or an aquatic animal production facility is considered ``concentrated''
and thus subject to NPDES permitting, is when the Director so
designates the operation or facility on a case-by-case basis. See 40
CFR 122.23(c) and 122.24(c). Case-by-case designations are based on a
determination that the operation or facility is a significant
contributor of pollutants to waters of the United States. In
designating an operation or facility as a significant contributor of
pollutants, the Director essentially finds that the facility's
discharges are more like point sources already subject to NPDES
regulation than those agricultural nonpoint sources that are not.
i. Under What Circumstances Are CAFOs Designated on a Case-By-Case
Basis?
EPA regulations define which AFOs qualify as CAFOs based on various
criteria set out in the regulations. These criteria were established
for a ``basic national standard and practical administrative
approach.'' See 40 FR
[[Page 46075]]
54182, 54183 (11/20/75). To supplement this approach, EPA included a
designation mechanism in the regulations. Through this mechanism, even
where a source did not meet all of the regulatory criteria to become a
CAFO, the Director, upon determining that the source is a significant
contributor of pollutants to waters of the United States, could
exercise its discretion and designate the source as a CAFO to ensure
that the source would be regulated. In making this determination, the
Director conducts an on-site inspection of the facility and considers
the following factors: (1) The size of the animal feeding operation and
the amount of wastes reaching waters of the United States; (2) the
location of the animal feeding operation relative to waters of the
United States; (3) the means of conveyance of animal wastes and process
waste waters into waters of the United States; (4) the slope,
vegetation, rainfall, and other factors affecting the likelihood or
frequency of discharge of animal wastes and process waste waters into
waters of the United States; and (5) other relevant factors. 40 CFR
122.23(c). One such relevant factor could be the water quality of the
receiving water including the degree of nonattainment.
ii. Under What Circumstances Are CAAPFs Designated on a Case-by-
Case Basis?
Permitting authorities can also designate any warm or cold water
aquatic animal production facility for regulation under the NPDES
permitting program on a case-by-case basis. 40 CFR 122.24. The
Director, upon determining that the source is a significant contributor
of pollutants to waters of the United States, may designate an aquatic
animal production facility as a concentrated aquatic animal production
facility. To make this determination, the Director conducts an on-site
inspection of the facility and considers the following factors: (1) The
location and quality of the receiving waters of the United States; (2)
the holding, feeding and production capacities of the facility; (3) the
quantity and nature of the pollutants reaching waters of the United
States; and (4) other relevant factors. 40 CFR 122.24(c).
2. Why is EPA Proposing Changes to the CAFO and CAAPFs Jurisdictional
Regulations?
In some areas, pollutant contributions from small unregulated (by
NPDES) animal production sources (terrestrial and aquatic) are the
primary cause of impairment in some water segments. As indicated in
the1996 Report to Congress under CWA section 305(b), agriculture,
including both animals and cropland, is the leading source of water
quality impairment of rivers and lakes. Based on data collected by the
States and Territories, EPA estimated that, of the waters assessed, 25
percent of the impaired river miles, 19 percent of the impaired lake
acres, and 10 percent of the impaired estuarine square miles are
polluted due to agricultural nonpoint sources of pollutants (EPA,1996).
Thirty-eight of the States included specific agricultural sources of
pollution in rivers.
i. How do Animal Feeding Operations Impact Water Quality?
Studies show that animal feeding operations, and particularly a
concentration of these facilities in a single watershed, can increase
nutrient pollution to a river or stream. A study of Herrings Marsh Run
in the coastal plain of North Carolina showed that nitrate levels in
streams and ground water were highest in areas with the greatest
concentration of swine and poultry production. (Hunt, P.G., et al.
1995. Impact of animal waste on water quality in an eastern coastal
plain watershed. IN: Animal Waste and the Land-Water Interface, Kenneth
Steele, Ed., Lewis Publishers, Boca Raton, FL, 589 pp.). Ortho-
phosphate levels were affected only slightly by animal waste
applications because most of the phosphorus was bound by the soil.
(Hunt, et al.,1995).
Results from an Illinois case study indicated that two types of
activities at small to medium-sized swine operations contributed to
water quality problems. First, many producers had constructed open-
front facilities without including manure collection systems to contain
feedlot runoff. Second, many producers practiced ``misting''and/or used
on-site watering systems to cool off animals, which in turn generated
conditions that caused uncontrolled pollutant runoff. This case study
demonstrated how even small operations contributed significant amounts
of pollutants to the receiving waters. (Ackerman and Taylor, 1995,
Stream Impacts due to Feedlot Runoff. IN: Animal Waste and the Land-
Water Interface, Kenneth Steele, Ed., Lewis Publishers, Boca Raton, FL,
589 pp.).
AFOs can also cause catastrophic effects locally. In June 1995,
animal waste contained in an eight-acre lagoon in North Carolina burst
through its dike, spilling approximately 22 million gallons of animal
waste into the New River. The spill reportedly killed fish along a 19-
mile downstream area. This was the worst of six reported spills in the
State during the summer of 1995. (EPA Office of the Inspector General,
March 1997, Animal Waste Disposal Issues, Audit Report No. E1XWF7-13-
0085-7100142).
Several case studies have also been performed to document the water
quality benefits of installing animal waste management systems. In
South Dakota, for example, 9 feedlots were monitored to determine which
most negatively impacted water quality through increased loads of
nutrients. After installation of animal waste management systems,
several feedlots exhibited evidence of improving water quality in
streams. (South Dakota Association of Conservation Districts, South
Dakota Department of Environment and Natural Resources, and USDA
Natural Resources Conservation Service, 1996, Final Report--Animal
Waste Management Team). EPA invites commenters to identify and submit
additional data to support or refute these conclusions.
ii. How Do Aquatic Animal Production Facilities Impact Water
Quality?
Other studies also indicate that aquatic animal production
facilities cause significant adverse impacts on water quality. Such
impacts include but are not limited to, oxygen depletion in surrounding
waters, degradation of benthic (bottom) ecosystems, and increases in
the severity of toxic algae blooms. The impact on water quality,
however, varies per fish species and production facility. Pond and tank
systems, for example, often discharge pulses of highly concentrated
waste discharges during cleaning and harvesting. (Bergheim, A., A.
Sivertsen, and A.R.Selmer-Olsen. 1982. Estimated Pollution Loading From
Norwegian Fish Farms. I. Investigations 1978-1979. Aquaculture 28:347-
361). Catfish ponds, for instance, release effluents containing high
concentrations of nutrients, often at concentrations exceeding water
quality limits set by EPA and state governments. (Tucker, C.S. 1996.
The Ecology of Channel Catfish Culture Ponds in Northwest Mississippi.
Reviews in Fisheries Science 4(1):1-55). EPA invites commenters to
identify and submit additional data to support or refute these
conclusions.
3. What Changes Is EPA Proposing To Make to the CAFO and CAAPFs
Jurisdictional Regulations?
As stated previously, currently only the ``Director'' may designate
these sources as subject to the NPDES program on a case-by-case basis
and ``Director'' is defined as the EPA Regional Administrator or the
State Director, as the context requires. 40 CFR 122.2. EPA foresees the
need to make
[[Page 46076]]
future designations itself in authorized States in particular
circumstances, although the Agency has only done so on occasion.
Therefore, EPA is proposing to revise 40 CFR 122.23 and 122.24 to
include explicit language describing that the Agency has the authority
(under certain circumstances discussed below) to make such designations
in instances when the State has not already done so.
i. When Would EPA Designate These Sources?
The proposed regulatory change would limit the exercise of this
discretion to the situation when EPA establishes a TMDL for a waterbody
in an authorized State and determines that designation is necessary to
provide reasonable assurance that the wasteload allocations and load
allocations under the TMDL will be achieved. By restricting the
exercise of its discretion to this high priority circumstance, the
Agency recognizes its own resource limitations, as well as the special
role of authorized NPDES States in the federal system.
States must submit each TMDL they establish to EPA for approval.
Elsewhere in today's Federal Register, EPA proposes regulations to
require States to submit a plan to implement the load allocations and
wasteload allocations of a TMDL as a component of the TMDL. EPA would
evaluate the adequacy of the implementation plan (a required element of
a TMDL) in determining whether to approve a TMDL. If EPA disapproves a
TMDL based on a determination that the implementation plan is
inadequate, EPA would establish the TMDL itself, including an
implementation plan.
One of the proposed required elements of the implementation plan is
that it contain reasonable assurance that the control actions and/or
management measures required to implement the load allocations and the
wasteload allocations established by the TMDL will be put in place and
the load allocations and wasteload allocations will be met. Thus, EPA
may disapprove the TMDL if it determines that the implementation plan
lacks reasonable assurances. For example, EPA may determine that the
implementation plan lacks reasonable assurances that certain animal
feeding operations will achieve and maintain their respective pollutant
load allocations. If working with the State to achieve reasonable
assurance has failed, EPA would disapprove the TMDL and would be
required to establish a TMDL, including an implementation plan. EPA may
then determine that some animal feeding operations are significant
contributors of pollutants to waters of the United States and that the
best way for EPA to provide reasonable assurance that such an animal
feeding operation achieves and maintains its assigned pollutant load
allocation is through the issuance (and enforcement) of an NPDES
permit. Under today's proposal, EPA could then invoke its designation
authority and subject the animal feeding operation to the NPDES
program. In similar circumstances, EPA could designate an unregulated
aquatic animal production facility. The language in today's proposal
about the Agency's intention and authority to designate unregulated
animal production sources in authorized States--where EPA establishes a
TMDL--supports the fulfillment of the CWA goals to attain and maintain
water quality standards. The proposal also supports EPA's backstop
authority, as specified in CWA section 303(d)(2), to establish TMDLs
(including all required elements) for waterbodies for which the State
fails to do so.
ii. How Would This Proposal Affect States?
The proposed regulation limits the exercise of this discretionary
authority to situations where EPA establishes a TMDL. Many States have
opportunities to provide ``reasonable assurances'' to control nonpoint
source pollutants and/or pollution in ways (and based on authorities)
that are not available to the federal EPA. When EPA establishes a TMDL,
the federal authority to designate otherwise unregulated sources as
point sources would provide a federally enforceable ``reasonable
assurance'' that the allocation would be achieved. The Agency stresses
that the authority proposed today would be used only in those
circumstances where other means of working with the State have failed.
iii. Who Would Issue Permits to These Sources Once Designated?
EPA does not have authority to issue permits to the animal
production facilities that the Agency designates for regulation in a
State authorized to administer the NPDES program. That authority
remains exclusively with the authorized State. CWA section 402(c).
Instead, EPA relies on its authority to designate point sources under
the CWA in general and the specific authority provided by CWA section
501(a) to support the Agency's authority to designate point sources
subject to regulation under the NPDES program, even in States
authorized to administer the NPDES permit program. The interpretive
authority to define point sources and nonpoint sources was recognized
by the D.C. Circuit in NRDC v. Costle, 568 F.2d 1369, 1377 (D.C. Cir.
1977). This interpretive authority arises from CWA section 501(a) when
EPA interprets the term ``point source'' at CWA section 502(14).
4. How Would EPA Revise the Regulatory Text?
EPA recognizes that many State agencies have limited resources to
implement their NPDES programs and in many cases, a State's inaction in
the designation of additional sources is not a result of an authorized
State's unwillingness to assert regulatory authority over additional
sources, but rather the perceived inability to assure timely issuance
of individual permits for these sources in the face of competing
priorities. Given increased reliance and success in control of point
sources under State NPDES general permits, however, the Agency believes
that EPA designation in these jurisdictions and in these instances will
expedite the attainment of water quality standards without undue burden
on authorized States.
In order to achieve this result, EPA is proposing to modify 40 CFR
122.23(c)(1), (3) and (4) and 40 CFR 122.24(c)(1)-(3) as reflected in
proposed regulatory text. These modifications would specify that, in
jurisdictions where EPA is not the NPDES permitting authority, EPA
could (under certain circumstances) designate an animal feeding
operation as a ``concentrated animal feeding operation'' where the
Regional Administrator or his/her delegee makes a determination that
the operation is a significant contributor of pollutants to waters of
the United States. Similarly, today's proposal would accomplish the
same objective for the designation of an aquatic animal production
facility as a ``concentrated'' aquatic animal production facility
(i.e., the aquatic form of a concentrated animal feeding operation).
These modifications would also specify that EPA would only designate
these facilities where pollutants are discharged into waters for which
EPA establishes a TMDL to provide reasonable assurance that the
wasteload allocations and load allocations under the TMDL will be
achieved.
The Agency invites comments on this proposal, including the
limitation of the federal designation authority (in authorized States)
to discharges to waters for which EPA establishes a TMDL.
[[Page 46077]]
B. How Would Silvicultural Activities Be Affected by Today's Proposal?
1. Which Sources Are Currently Excluded From the Definition of a
``Point Source?'
EPA is today proposing to modify its current interpretation of the
term ``point source'' with respect to discharges associated with
silviculture. The term ``point source'' is defined in regulations at 40
CFR 122.3 to exclude certain discharges from NPDES requirements.
Section 122.3(e) specifically excludes ``Any introduction of pollutants
from nonpoint source agricultural and silvicultural activities,
including storm water runoff from orchards, cultivated crops, pastures,
range lands and forest lands.'' As a preliminary matter, the Agency
notes that, though the regulatory exclusions have existed since the
1970's, Congress did not enact the specific statutory ratification for
the agricultural exclusions, for ``return flows from irrigated
agriculture'' and ``agricultural storm water'' until 1977 and 1987,
respectively. Neither of the 1977 nor the 1987 amendments provided any
ratification of the silvicultural exclusions.
Since that time, the Agency and the States have begun the
implementation of regulatory controls on intermittent ``wet weather''
sources. In 1987, Congress directed EPA to focus on water quality
concerns associated with storm water. One of the types of storm water
discharges that the Agency identified as appropriate for regulatory
control under the NPDES program was storm water discharges associated
with construction activity, including clearing, grading, and excavation
activities. See 40 CFR 122.26(b)(14)(x). Storm water discharges
resulting from land disturbance have significant potential for water
quality impairment due for example, to excessive sediment loads.
Sediment adversely affects aquatic ecosystems by reducing light
penetration, impeding sight-feeding, smothering benthic organisms,
abrading gills and other sensitive structures, reducing habitat by
clogging interstitial spaces within a streambed, and reducing the
intergravel dissolved oxygen by reducing the permeability of the bed
material. (Everest, F.H., Beschta, J.C., Scrivener, K.V., Koski, J.R.,
Sedell, J.R., and C.J. Cederholm. 1987. Fine Sediment and Salmonid
Production: A Paradox Streamside Management: Forestry and Fishery
Interactions, Contract No. 57, Institute of Forest Resources,
University of Washington, Seattle, WA. pp. 98-142).
To date, NPDES regulation of storm water discharges associated with
construction activity has protected water quality from the runoff
associated with for example, the construction of roads. A gap in
regulatory coverage exists, however, in that the existing NPDES
regulations categorically exclude silviculutral road construction and
maintenance from the definition of ``point source.'' 40 CFR 122.27(b).
Therefore, the silviculture regulation excludes discharges from forest
roads from the universe of sources that can be regulated under the
NPDES permitting program.
2. Are All Discharges From Silivicultural Activities Currently Excluded
From the NPDES Program?
Not all discharges from silvicultural activities are currently
excluded from the definition of a ``point source.'' EPA regulations at
40 CFR 122.27(b)(1) specify which discharges associated with
silvicultural activities are point source discharges, namely,
discharges from rock crushing, gravel washing, log sorting and log
storage facilities. Discharges from these activities are categorically
subject to regulation under the NPDES program. EPA regulations at 40
CFR 122.27(b)(1) also currently identify certain discharges associated
with silviculture activities that may be ``nonpoint source''
discharges, thus, not subject to NPDES permits. These include runoff
from nursery operations, site preparation, reforestation and subsequent
cultural treatment, thinning, prescribed burning, pest and fire
control, harvesting operations, surface drainage, or road construction
and maintenance. Currently, runoff from these activities is
categorically excluded from the NPDES program. Also, as noted in the
regulation, some discharges associated with silvicultural activities
(such as stream crossing for roads) may involve point source discharges
of dredged and fill material. In these cases, a CWA section 404 permit
may be required. See 33 CFR 209.120 and part 233.
EPA acknowledges that CWA section 404(f)(1) exempts certain
discharges of dredged or fill material from CWA permitting requirements
for, among other activities, normal silvicultural activities and the
construction or maintenance of forest roads. The CWA section 404(f)
exemption for discharges of dredged and fill material applies to permit
requirements under both section 404 and section 402, except as provided
in section 404(f)(2). Section 402, however, does not regulate
discharges of dredged or fill material. EPA has consistently
interpreted the apparent inconsistency of including section 402 in the
section 404(f) ``exemptions'' to reflect the intent that discharges of
dredged or fill material that are exempt from section 404 permit
requirements would not be regulated under section 402 instead. EPA has
not interpreted the inclusion of section 402 in section 404(f) to mean
that discharges other than dredged or fill material (from the
activities listed in section 404(f)) are exempt from permit
requirements under section 402. Today's proposal would not address
dredged or fill material or otherwise affect the section 404(f)
exemption. Today's proposal would apply to discharges of pollutants
other than dredged or fill material, for example, from contaminated
storm water discharges.
EPA also notes that the section 404(f) exemption for discharges of
dredged or fill material associated with the construction or
maintenance of forest roads is dependent on case-by-case application of
best management practices. Best management practices provide effective
mechanisms to address potential adverse impacts to aquatic resources,
including degradation of physical, chemical, and biological
characteristics.
3. Which Silivicultural Discharges Would Be Designated Under Today's
Proposal as Sources Subject to the NPDES Program?
By today's action, the Agency proposes to remove the regulatory gap
in coverage with respect to those silvicultural discharges that are
currently identified as a discrete category of ``non-point sources''
excluded from the opportunity for regulation under the NPDES permitting
program. The only silvicultural discharges, however, that would be
subject to regulation under the NPDES program on a categorical basis
are those that are currently regulated as categories today: rock
crushing; gravel washing, log sorting, and log storage facilities. For
the sources that were categorically excluded previously (nursery
operations, site preparation, reforestation and subsequent cultural
treatment, thinning, prescribed burning, pest and fire control,
harvesting operations, surface drainage, or road construction and
maintenance), the categorical exclusion from the definition of ``point
source'' would be removed. Instead, on a case-by-case basis, selected
sources could be designated for regulation under the NPDES program for
storm water discharges under 40 CFR 122.26(a)(v). This case-by-case
designation, made by the Director or EPA, would be based upon a
determination that the source contributes to a violation of water
[[Page 46078]]
quality standards or is a significant contributor of pollutants to
waters of the United States. To make this determination the Director
could consider the following factors: (1) The location of the discharge
with respect to waters of the United States; (2) the size of the
discharge; (3) the quantity and nature of the pollutants discharged to
waters of the United States; and (4) other relevant factors. 40 CFR
122.26(a)(v).
4. Why Is EPA Proposing To Remove the Regulatory Exclusion for These
Silvicultural Discharges?
Silviculture contributes approximately 3 to 9 percent of nonpoint
source pollution to the Nation's waters. (Neary, D.G., and J.L.
Michaele, 1989, Effect of sulfometuron methyl on ground water and
stream quality in coastal plain forest watersheds. Water Resources
Bulletin. 25(3):617-623). Twenty-three States have identified
silviculture as a problem source contributing to nonpoint source
pollution in their 1996 water quality assessments submitted to EPA
under CWA section 305(b). (USEPA, 1996, EPA-841-R-97-008 April 1998).
Several types of silvicultural activities that are currently exempt
from NPDES regulation may cause significant adverse impacts on water
quality. These include, but are not limited to, road construction and
maintenance, site preparation, prescribed burning, clearcutting, and
harvesting operations. As mentioned above, the construction and
maintenance of roads, other than those constructed for silvicultural
operations, are currently subject to NPDES requirements. The
construction and maintenance of roads related to silvicultural
activities, however, is exempt. Studies demonstrate that some such road
construction may create significant water quality problems. Results of
a study on forest management activities in a small watershed indicated
that suspended sediment yields increased almost 8 fold in the first
year following road construction, and two-fold following logging in the
second year. (B. Anderson and D.F. Potts, 1987, Suspended Sediment and
Turbidity Following Road Construction and Logging in Western Montana,
Water Resources Bulletin, Vol. 23, No. 4).
Mechanical site preparation by large tractors that shear, disk,
drum-chop, or root-rake a site may result in considerable soil
disturbance over large areas and has a high potential to deteriorate
water quality. (Beasley, R.S. 1979. Intensive site preparation and
sediment loss on steep watersheds in the Gulf Coastal plain. Soil
Science Society of America Journal. 43(3):412-416). Site preparation
techniques that result in the removal of vegetation and litter cover,
soil compaction, exposure or disturbance of the mineral soil, and
increased stormflows due to decreased infiltration and percolation, all
can contribute to increases in stream sediment loads. (Golden, M.S.,
C.L. Tuttle, J.S. Kush, and J.M. Bradley, 1984, Forestry activities and
water quality in Alabama: Effects, recommended practices, and an
erosion-classified system. Auburn University, Agricultural Experiment
Station. Bulletin 555). Prescribed burning is another method used to
prepare sites that may also have effects on water quality as a result
of increased erosion and the altering of soil properties. Id.
The actual harvesting of timber can also contribute to water
quality problems. Results from studies have indicated that
clearcutting, which is often a method used for timber harvesting, can
have significant effects on the nutrient levels and temperatures of
nearby waters. The resulting impacts of a logging operation in the Bull
Rull Watershed of Oregon include increased nitrate-nitrogen levels for
up to 7 years after the harvest and an increase in annual stream
temperatures by 2-3 degrees Celsius for the following 3 years after the
harvest. (Harr, R.D., and R.L. Fredriksen. 1988. Water quality after
logging small watersheds within the Bull Run Watershed, Oregon. Water
Resources Bulletin. 24(5):1103-1111). EPA invites commenters to
identify and submit additional data to support or refute these
conclusions.
5. When Would Silviculutral Sources Be Required To Obtain an NPDES
Permit?
The effect of today's proposed elimination of the categorical
silviculture exclusion would be limited. The currently unregulated
silvicultural sources would only be required to obtain NPDES permit
authorization (1) upon a case-by-case designation by EPA or the
authorized State and (2) for the purposes of EPA designation, only for
sources that discharge to waters for which EPA establishes a TMDL to
ensure that the wasteload allocations and load allocations under the
TMDL are achieved. The existing regulations for storm water associated
with industrial activity (also known as ``Phase I'' storm water
regulations) issued pursuant to CWA section 402(p)(4)(A), would not
apply to the discharges that would become subject to regulation by the
revision to 40 CFR 122.27(b). For example, storm water discharges
associated with construction and maintenance of forest roads would not
be considered ``storm water discharges associated with industrial
activity'' under 40 CFR 122.26(b)(14). The construction of silviculture
roads would not be a category of storm water discharge that is
automatically subject to NPDES permitting like other kinds of road
building. Instead, point source discharges of storm water associated
with currently unregulated silviculture would only be designated for
regulation on a case-by-case basis pursuant to CWA section 402(p)(2)(E)
or 402(p)(6).
As noted above, EPA proposes that any final rule would limit EPA
designation of silviculture point sources to discharges to waters for
which EPA establishes a TMDL because, as a result of proposals
elsewhere in today's rule, these circumstances would provide a
considered and focused basis for regulation. The limitation on federal
designation would apply both in authorized States, as well as in States
where EPA administers the NPDES program. Given the Agency's limited
resources, as well as the potentially huge universe of silvicultural
sources that could become subject to NPDES permitting, today's rule
focuses those limited EPA resources on these priority waterbodies. In
States where EPA administers the NPDES program, the Agency does not
propose silviculture point source designation authority to the same
extent as would be available to authorized States. Unlike authorized
States that might designate silviculture point sources outside of the
TMDL context, EPA would only designate a source when the Agency
establishes a TMDL itself to ensure that the wasteload allocations and
load allocations under the TMDL are achieved. In addition, EPA would
work with and assist those States (where EPA administers the NPDES
program) in development of their nonpoint source control programs (so
that the State could provide its own reasonable assurances), rather
than federally designating silviculture point sources prior to that
State's establishment of its TMDLs. As noted above, EPA does not
propose to limit designation by authorized States, who may have other
opportunities to assure ``reasonable assurances'' that nonpoint sources
attain load allocations under TMDLs. Additionally, CWA section 510
preserves more expansive designation authority for States.
EPA expects that only in extremely rare circumstances would the
Agency need to exercise its authority to establish an NPDES permit
requirement for discharges associated with silvicultural activities.
Indeed, enhanced implementation of State programs and authorities
designed to
[[Page 46079]]
protect water quality from silvicultural activities may be strong
enough, in the aggregate, to satisfy ``reasonable assurance'' that
silvicultural sources would attain load allocations under TMDLs through
State means alone. EPA would only use the proposed new designation
authority as a ``last resort'' because EPA lacks authority to regulate
silvicultural sources directly through other means than through the
NPDES permitting program. As noted above, States might choose to use
the new authority more broadly, but EPA would encourage them to focus
their limited regulatory resources in the same limited manner that EPA
would use it.
6. How Would States Be Affected by This Proposal?
State capacity to address silvicultural sources is exemplified by
the breadth and depth of State programs. A significant number of States
have comprehensive forest practice management acts, while most others
have at least some sort of backup authority, such as enforceable water
quality standards or ``bad actor'' laws. At least ten States administer
regulatory programs that are as comprehensive as EPA anticipates would
be imposed if sources were designated under today's proposal for
regulation under the NPDES permitting program. (Olafson, PV, Cheng
A.S., and R.D. Moulton. 1995. Regulation of Private Forestry Practices
by State Governments. University of Minnesota, Minnesota Agricultural
Experiment Station. Bulletin 605). Nearly all States have developed and
published BMPs for silviculture, about half of the States conduct
annual compliance audits to determine landowner use of BMPs, and in
most States, the State forestry agency plays a role in the State
nonpoint source plan. (Stuart, Gordon W., 1996. The National
Association of State Foresters 1996 Progress Report, State Nonpoint
Source Pollution Control Programs for Silviculture. National
Association of State Foresters).
In general, EPA envisions that permits for silvicultural activities
would be based on an approach emphasizing the development of pollution
prevention plans and/or specification of best management practices
rather than quantitative discharge limits for specific pollutants. EPA
would work with States and stakeholders in developing these permits.
EPA invites comments on removing the categorical exemption for
runoff from certain sivicultural activities and on its intention to
limit federal designation authority to discharges into waters for which
EPA establishes a TMDL.
IV. Proposed EPA Authority To Reissue State-Issued Expired and
Administratively-Continued NPDES Permits
Under the NPDES program regulations, a Regional Administrator may
review and object to State-issued NPDES permits. The procedures by
which a Regional Administrator may review and object to these permits
are found in 40 CFR 123.44. The existing objection authority, under
section 402(d) of the Act, grants EPA 90 days within which to object to
a proposed State permit that fails to meet the guidelines and
requirements of the Act. If a State fails to respond to an EPA
objection within 90 days of objection, exclusive authority to issue the
NPDES permit to that discharger passes to EPA.
A. Can EPA Object to State-Issued Expired and Administratively-
Continued Permits?
Today's proposal describes a new mechanism by which a Regional
Administrator may trigger the existing review and objection procedures
in 40 CFR 123.44 for State-issued NPDES permits. EPA is proposing to
grant the Regional Administrator the discretion to trigger these
procedures when a State fails to revise an expired, State-issued permit
that has been administratively-continued for more than 90 days. This
authority could be triggered when the expired permit authorizes a
discharge to an impaired waterbody where there is a need for a change
in the existing permit limits (referred to as an ``environmentally-
significant permit''). The Agency's NPDES regulations require that an
existing permittee submit a new permit application at least 180 days
before an existing permit expires. 40 CFR 122.21(d)(2). When a
permittee has submitted a timely application for renewal, but the State
Director fails to act on the permittees' application before the
existing permit expires, State law often provides that the existing
permit continues in effect by operation of law. The permit remains in
effect by operation of law until the State takes final action on the
permittee's application--that is, until the State makes a final
decision to grant or deny a new permit. This is often referred to as
administrative continuance. These State laws, like the corresponding
provisions in 40 CFR 122.6 and the federal Administrative Procedure
Act, 5 U.S.C. 558(c), aim to protect a permittee who has submitted a
timely application for renewal. State law protects a permittee from
losing its authorization to discharge simply because the permit-issuing
authority has not issued a new permit before the existing permit
expires.
Administrative continuance may provide States the necessary
flexibility without significant adverse impacts on the NPDES permitting
scheme. However, it may also lead to inappropriate delays in reissuing
permits that need revision in order to remain in compliance with
applicable requirements. State administrative-continuance laws
typically allow an expired permit to remain administratively-continued
indefinitely. Therefore, a lengthy administrative continuance of a
permit for a discharge into an impaired water can greatly delay the
implementation of needed water quality-based effluent limitations,
including effluent limitations implementing wasteload allocations
established in a TMDL for an impaired waterbody. Under EPA's existing
regulations, no mechanism currently exists by which to invoke the
Agency's permit veto authority to address this situation. Today's
proposal would provide that needed procedural mechanism.
This proposed provision is designed to address a subset of expired
and administratively-continued permits. EPA uses the term backlog to
describe the larger set of permits that are either expired and
administratively-continued or have not yet been issued to first time
applicants. Notwithstanding the Agency's own permit backlog, EPA
recognizes that many expired permits for discharges into impaired
waters have not been reissued and expects to exercise this discretion
in very rare instances involving environmentally-significant permits.
The Agency intends to use its discretion under the proposed provision
as one way to help ensure that these permits will be issued in a timely
manner.
B. How Would EPA Review and Object to a State-Issued Expired and
Administratively-Continued Permit?
Today's proposal provides that, if the State failed to submit to
EPA a draft or proposed permit for a discharge into an impaired
waterbody within 90 days following the permit expiration date, the
Regional Administrator would be able to treat the expired and
administratively-continued permit as equivalent to the State's
submission of a draft or proposed permit for EPA review under 40 CFR
123.44. For EPA to trigger this discretionary review mechanism, EPA
would give the State and the discharger 90-days notice of its intent to
do so. EPA could provide this notice at any time
[[Page 46080]]
following the 90-day period after permit expiration. The use of this
new mechanism would be discretionary on the part of EPA. Like a veto of
a proposed permit under the existing 40 CFR 123.44, this would not
constitute final agency action until EPA had completed the permit
issuance process under 40 CFR part 124 and issued or denied the permit.
District of Columbia v. Schramm, 631 F.2d 854, 816 (D.C. Cir. 1980);
Mianus River Preservation Comm. v. Administrator, EPA, 541 F.2d 899,
909 n.24 (2nd Cir. 1976) (discretion). Champion Intl Corp. v. U.S. EPA,
850 F.2d 182, 187 (4th Cir. 1988) (reviewability).
EPA believes that the 90 days provided after permit expiration,
plus the 90 days provided after notice by the Agency that it intends to
trigger Agency review, plus the 90 days provided for a State to respond
to Agency objection would provide enough time for a State to reissue an
expired permit. EPA notes that under the proposed mechanism, the Agency
would effectively have the authority to extend the period of time for
the State to reissue a permit beyond the 270 days effectively provided
under the proposed regulation. This would occur by delaying the date
upon which the Agency notifies the State of its intent to trigger
Agency review. Nonetheless, the Agency invites comment on whether EPA
should provide a grace period of longer than 90 days after the permit
expires and is administratively-continued before the Agency may provide
notice that it intends to trigger Agency review.
C. When Would EPA Withdraw its Objection?
Once the environmentally-significant, administratively-continued
permit is subject to review under 40 CFR 123.44 procedures, EPA would
be able to comment on, object to, or recommend changes to the permit.
If the State, under 40 CFR 123.44(a), submitted a draft or proposed
permit for EPA review at any time before exclusive authority to issue
the permit passes to EPA under 40 CFR 123.44(h), EPA would withdraw its
notice of intent to assume permit authority. At this point, existing
rules on EPA objection to State-issued permits would govern. Therefore,
EPA may take any appropriate action, including transmission of comments
on or possible objection to the new draft or proposed permit submitted
by the State. Furthermore, the ability to invoke this authority would
continue until the State issues the final permit. In other words, if a
State submits a draft or proposed permit that EPA believes resolves all
of the concerns under the objection, but fails to issue the final
permit, EPA may in fact, invoke this authority again and object to the
original (expired and administratively-continued) permit.
D. When Could EPA Invoke This Authority?
Proposed 40 CFR 123.44(k) describes two situations in which EPA
would be able to treat an expired and environmentally-significant,
administratively-continued permit as the State's submission of a permit
for EPA review under 40 CFR 123.44. This authority could be invoked if
the discharge is subject to a TMDL, established or approved by EPA, and
the expired permit does not incorporate the relevant wasteload
allocations established in the TMDL. Second, this authority could be
invoked if the permit authorizes a discharge of a pollutant(s) of
concern (a pollutant(s) for which the waterbody is impaired) to a
waterbody that does not meet water quality standards and for which EPA
has not established or approved a TMDL.
EPA is considering providing explicit language describing that this
authority is available to the Agency with respect to all expired and
administratively continued permits which are not consistent with new
CWA provisions. Examples of such permits, other than those covered by
today's proposal, would be permits that do not reflect newly-adopted
water quality standards and effluent limitations guidelines. EPA
invites comment on these and other circumstances in which it would be
appropriate for EPA to assert this authority.
E. Would EPA Work With the State Before Invoking This Authority?
The Agency stresses that the new review mechanism proposed today
would be used only in those circumstances where other means of working
with the State to reissue the permit have failed. The Agency may invoke
this authority where leaving the administratively-continued permit in
place would frustrate the attainment of water quality standards in
impaired waterbodies prior to the establishment of a TMDL. The Agency
may also invoke this authority in instances where leaving the
administratively-continued permit in place would frustrate the
implementation of a TMDL. Leaving the administratively-continued permit
in place in both of these instances would be inconsistent with the
goals and purposes of the Act. At any time during this process, the
State is encouraged to explain to EPA the reasons for its failure to
reissue the expired permit. The Agency will carefully consider any such
explanation before proceeding with these objection procedures.
Similarly, the Agency would not expect to depend heavily upon the
proposed mechanism in States whose administrative continuance laws
operate for periods of time not much in excess of the 270 days
effectively provided for reissuance by this proposal.
F. What If a Permit Has Expired but the Permittee Has Not Submitted a
Timely and Complete Application for Renewal to the State?
EPA also notes that proposed 40 CFR 123.44(k) would apply only to
those expired, State-issued permits for which a timely and complete
application for renewal has been submitted to the State, and for which
State law has provided for continuation of the expired permit. The new
provision would not apply to unpermitted discharges or discharges of
new sources or new dischargers that may or may not have filed a permit
application. In these cases, existing authority allows the Agency to
institute judicial or administrative actions against these dischargers
for discharging without a permit, even if they have submitted an
application to the State and the State has not issued the permit.
G. What Authority Supports Today's Proposed Changes?
Section 402(d) of the Act provides EPA with authority to object to
and veto a proposed permit that violates the requirements of the Act.
As discussed below, neither the Act nor its legislative history
expressly speaks to the issue of whether the Agency may object to and
veto permits that have effectively changed under administrative
continuance. When Congress has not spoken directly to an issue of
statutory construction, courts recognize agency discretion to
reasonably interpret a statute that the Agency is charged to
administer. Chevron v. Natural Resources Defense Council, 467 U.S. 837
(1984). Therefore, the Agency has long held that, based on the
congressional purpose underlying CWA section 402(d), the Agency's
objection and veto authority exists not only when a permit has been
formally proposed and submitted to the Agency for review but also when
a State or a court has taken action to change a permit such that it
requires new review by the Administrator. Memorandum of July 18, 1973
from Robert V. Zener, Acting Deputy General Counsel, to Dale S. Bryson,
Acting Director Enforcement Division, Region V, regarding Extent of EPA
Concurrence on NPDES Permits; Memorandum of July 3, 1975 from Robert V.
Zener, General Counsel, to
[[Page 46081]]
James O. McDonald, Director, Enforcement Division, Region V, regarding
US EPA Authority to Review State Permit Modifications. Similarly, the
Agency has concluded that administrative continuance of an expired
permit in the face of newly established wasteload allocations or an
impairment listing may constitute a circumstance where a new review by
the Administrator is warranted.
EPA's authority to promulgate the proposed revision to 40 CFR
123.44 is a reasonable interpretation of several statutory provisions.
The authority stems primarily from EPA's responsibility to ensure that
permits include water quality-based effluent limitations as necessary
to meet water quality standards. This is especially important in waters
where TMDLs and wasteload allocations have been established to meet
applicable water quality standards. Section 303(d) of the Act requires
EPA to ensure that a TMDL is established for impaired waters. The
wasteload allocations derived from the TMDL indicate the water quality-
based effluent limitations that permittees discharging to the impaired
water must meet for the waterbody to meet applicable water quality
standards. Section 301(b)(1)(C) of the Act directs EPA and the States
to include water quality-based effluent limitations in NPDES permits
that will enable the waterbody to meet the applicable water quality
standards.
Listing a water under CWA section 303(d) and the subsequent
establishment of a TMDL, may indicate that new or more stringent water
quality-based effluent limitations are necessary for point source
discharges to that waterbody. If so, a lengthy administrative
continuance of the permit may interfere with the Administrator's
responsibility to ensure that permits are consistent with the
requirements of the CWA. The Administrator bears a statutory
responsibility under CWA section 303(d) to ensure timely establishment
of TMDLs and an obligation under CWA section 301(b)(1)(C) to ensure
that permits include water quality-based effluent limits as necessary
to meet water quality standards. CWA section 501(a) allows the Agency
to promulgate a regulation that relies upon EPA's authority in CWA
section 402(d), to prevent a State from avoiding or postponing by
lengthy administrative-continuance, what otherwise would be required by
reissuance. The Agency also bears an obligation under CWA section
402(c)(2) of the Act to ensure that State programs and State-issued
permits comply with the requirements of the Act. NPDES permits may not
be issued for period exceeding five years (CWA section 401(b)(1)) and
should be reviewed and revised in a timely fashion to ensure compliance
with the CWA and applicable regulations. It would be difficult for the
Agency to fully discharge its duty under CWA section 402(c)(2) to
ensure that States not violate the requirements of CWA section
402(b)(1) if the only statutorily-authorized remedy were program
withdrawal. Therefore, Congress provided EPA the objection and veto
authority found in CWA section 402(d). EPA believes that it must be
able to invoke this authority as provided in the proposed 40 CFR
123.44(k) to implement the goals of the CWA and the requirements of CWA
section 402(b).
EPA also believes that today's proposal is consistent with the
purpose of CWA section 402(d). The Agency's objection and veto
authority, under CWA section 402(d), is necessary to correct program
and permit inadequacies before they have become so systemic that
program withdrawal is justified. The Agency should reserve withdrawal
authority for gross inadequacies in a State program. This distinction
was recognized by Representative Reuss, then chairman of the House
Conservation and Natural Resources Subcommittee, who explained that:
* * * Federal takeover should not be necessary when EPA finds that
only a few of the permit applications are being ``improperly''
issued. Such total takeover would result in chaos both at the State
and Federal level. It should be exercised with great care and only
when there is clear evidence that the entire State program has
fallen into disrepair.
118 Cong. Rec. 10,240 (1972). Accordingly, he argued that the Agency
required the authority in CWA Sec. 402(d) to ensure uniform
implementation of the Act's requirements in individual permits:
The EPA Administrator should not have to veto a State's total
program just to get at permits granted improperly to a couple of
polluters. So we still need a veto on individual permits to check
those that are improperly granted, and this concept is already
embodied for interstate waters in section 402 (d) (2) of the House
bill.
Id. EPA's interpretation of the veto authority conferred in section
402(d) is consistent with the explanation of the relationship between
sections 402(d) and 402(c) as articulated in these floor statements.
Without the authority to object to expired permits on impaired waters,
EPA's only recourse is program withdrawal. EPA believes this is clearly
inconsistent with the intent of CWA section 402(d).
Also, it would make little sense for Congress to have left the
Agency without discretion under CWA section 402(d) to address, at the
time of permit expiration, the problem of lengthy administrative
extension. EPA could have addressed the problem by objecting to and
vetoing the permit at the time it was initially proposed had the Agency
known then that the permit would be administratively extended for an
unreasonable length of time. EPA believes that, instead, the statute
can reasonably be read under Chevron to allow States to issue 5-year
permits and provide for administrative continuance without an initial
EPA objection or veto by preserving the Agency's objection and veto
authority to ensure that the use of administrative continuance is
consistent with the statutory scheme that underlies section 303(d) of
the Act.
H. Conclusion
It is important to note that the Agency is not here considering
imposing newly formulated water quality-based effluent limitations
during the term of the existing permit. Nor would the proposed change
interfere with the proper operation of State administrative continuance
laws. The Agency would exercise its discretion to veto an
administratively-continued permit when the Agency perceives a need to
issue a permit that reflects water quality-based effluent limitations
necessary for the water to achieve applicable water quality standards.
But the permit would remain administratively-continued until the Agency
or the State issued a new permit (with the wasteload allocation
incorporated). In no instance would a permittee go without
authorization to discharge simply for failure of the State to take
action on the permittees timely application for renewal. The Agency
invites comment on other statutorily-authorized mechanisms by which the
Agency might address expired and administratively-continued permits for
sources discharging to impaired waterbodies. EPA also requests comment
on whether it should limit the exercise of this authority to impaired
waters for which a TMDL has not been developed and approved and to
waters for which a TMDL has been approved and a change to the
administratively-continued permit is necessary to implement a WLA in
the approved TMDL.
EPA recognizes that State agencies have limited resources to
implement their NPDES programs and often expired, administratively-
continued
[[Page 46082]]
permits are not a result of State unwillingness to reissue permits. EPA
recognizes that a State may be unable to reissue permits because of
competing priorities. EPA faces similar resource constraints when it
issues permits. The Agency also recognizes the State's role as primary
implementers of the NPDES program. The Agency, after carefully weighing
these considerations with the risks associated with allowing critical
permits to remain unrevised, has concluded that the proposal of this
provision is appropriate.
V. Regulatory Assessment Requirements
A. Regulatory Flexibility Act, as Amended by the Small Business
Regulatory Enforcement Fairness Act of 1996
The Regulatory Flexibility Act (RFA), as amended by the Small
Business Regulatory Enforcement Fairness Act, generally requires an
agency to prepare a regulatory flexibility analysis for any rule
subject to notice and comment rulemaking requirements under the
Administrative Procedure Act or any other statute. Under section 605(b)
of the RFA, however, if the head of an agency certifies that a rule
will not have a significant economic impact on a substantial number of
small entities, the statute does not require the agency to prepare a
regulatory flexibility analysis. Pursuant to section 605(b), the
Administrator certifies that this proposal, if adopted, will not have a
significant economic impact on a substantial number of small entities
for the reasons explained below. Consequently, EPA has not prepared a
regulatory flexibility analysis.
The first of today's proposed new provisions would amend EPA's
water quality standards regulations to require that States adopt and
implement antidegradation policies that ensure new and significantly
expanding dischargers who are large entities on impaired waterbodies
offset their discharges by more than a 1.5:1 ratio. (The proposal would
also amend the NPDES regulations to prohibit EPA from issuing an NDPES
permit unless the discharger complies with applicable antidegradation
requirements that are to include provisions requiring offsets.) Because
the provision would require a State (or EPA) to obtain offsets only
from large entities, there is no impact on small entities.
The second provision being proposed today would extend EPA's
current authority under the NPDES regulations to designate and require
NPDES permits for certain presently unpermitted sources. The proposal
would authorize EPA under certain conditions to require permits for
animal feeding operations (AFO), aquatic animal production facilities
(AAPF) or silvicultural activities. The current regulations provide
that, where EPA is the permitting authority, EPA may designate an AFO
or AAPF as a point source requiring an NPDES permit if the Agency
determines it is a significant contributor of pollution to waters of
the U.S. The proposed changes would extend this discretionary
designation authority to authorize EPA action in States with approved
NPDES programs but only in narrow circumstances. EPA could invoke this
authority only in those instances where the Agency establishes a TMDL
and designation is necessary to satisfy the reasonable assurance
standard under that TMDL.
In addition, under the current regulations, most silviculture
stormwater sources are exempt from NPDES regulation. Under the
proposal, these stormwater sources would continue to be exempt unless
and until EPA, or a State with an approved NPDES program, designated
them as subject to NPDES regulation. The effect of today's proposed
elimination of the categorical silviculture exclusion would be limited.
The currently unregulated silvicultural sources would only be required
to obtain NPDES permit authorization (1) upon a case-by-case
designation by EPA or the authorized State and (2) for the purposes of
EPA designation, only for sources that discharge to waters for which
EPA establishes a TMDL to ensure that the wasteload allocations and
load allocations under the TMDL are achieved. NPDES-authorized States,
however, might choose to use the new authority more broadly, but EPA
would encourage them to use it in the same limited manner that EPA
would use it. In fact, EPA expects that States would exercise this
authority infrequently, because many States have additional nonpoint
source authorities, unavailable to EPA, to control discharges from
these sources. EPA has concluded that this provision would not impose
significant new costs on a substantial number of small entities.
EPA assessed the potential costs associated with the permitting of
newly designated sources under several different scenarios. The results
of this evaluation show that there would not be a significant impact on
a substantial number of small entities if this proposal were adopted.
As a first step in its evaluation, EPA identified those small entities
potentially affected by the proposal. In identifying these small
entities, EPA used the definitions of small businesses established by
the RFA. Small governmental jurisdictions and small organizations (e.g.
nonprofit organizations) are not expected to be affected by the
designation provisions. Only businesses in sectors which include
silviculture, animal feeding operations and aquatic animal production
facilities would potentially be impacted by this limited extension of
EPA's (and in the case of silviculture, State) authority to designate
point sources.
There would be additional costs to small entities if EPA, following
promulgation of the designation provision, were to designate a
particular discharger for permitting. As noted previously, this would
occur only when a State fails to submit a TMDL or submits a TMDL that
EPA finds will not reasonably assure compliance with the load
allocations. EPA assumes that States will make every effort to develop
effective TMDLs and employ their existing programs and legal authority
to ensure compliance. Currently, every State has a nonpoint source
control program which in many cases includes legal authority to address
those industrial sectors that are the focus of the limited designation
authority (AFOs, silviculture activities and aquaculture). EPA also
expects further enhancements to State point and nonpoint source control
programs as the States develop their TMDLs. In these circumstances, EPA
can predict with a high degree of confidence that the occasion on which
it may need to exercise its proposed new designation authority will not
be great. EPA, however, cannot predict specifically how often this
authority may be used, or exactly how often States will use their new
designation authority with respect to silviculture.
The analysis of potentially regulated silviculture entities was
based on a modified sales test that compared the estimated per acre
cost of compliance with per acre sales revenue. The results show that
the potential costs of implementing BMPs per acre are less than 1% of
sales revenues from one acre of timber. Both compliance cost based on
anticipated BMPs and sales per acre were calculated regionally, to
account for regional variations in timber practices and timber sales
values. This analysis concluded that both logging operations and timber
land owners (i.e. nurseries, etc.) are expected to experience costs of
much less than 1% of sales in every scenario tested.
While EPA's exercise of the limited new proposed designation
authority for silviculture, may at some point in the future, result in
the imposition of these
[[Page 46083]]
additional costs on dischargers, including small entities, it is the
Agency's view that adoption of the provisions giving EPA and the States
authority to subject these sources to NPDES permitting requirements
does not impose additional costs on dischargers now. Further, because
the proposed authority is discretionary, it is not possible to identify
which nonpoint source dischargers, if any, would be designated as point
sources and required to obtain a permit. No sources would be
automatically so designated. Only in the event EPA or a State acted to
designate a particular discharger would there be any costs to the
discharger.
In analyzing potentially regulated animal feeding operations
(AFOs), EPA performed a sales test. The analysis determined that the
average potential costs of permit compliance are less than 1% of most
small entity sales revenue. However, this analysis was constrained by
two factors. First, the sales test relied on revenue data by farm,
which resulted in an underestimate of sales revenue from small
operations that own more than one farm and also underestimated sales
revenue from operations that receive revenue from more than one type of
source (sell more than one type of item). Second, EPA used the more
complete State 305(b) lists of impaired waterbodies (rather than 303(d)
lists) to estimate the number of entities that might be designated
under the proposed rule. Because waters listed as impaired under 305(b)
may still be attaining water quality standards and thus not require a
TMDL, this overestimates the number of entities used in EPA's
assessment. AFOs located on waterbodies that do attain standards are
not affected by today's proposal. Taking into account these
constraints, EPA's best estimate is that very few small entities (less
than 100 annually) would experience impacts greater than one percent of
sales revenue, and even fewer will experience impacts of greater than
three percent of sales revenue as a result of being designated.
Therefore, EPA's evaluation shows that there would not be a significant
impact on a substantial number of small AFOs.
The analysis of potentially regulated Aquatic Animal Production
Facilities (AAPFs) indicates that very few are located on impaired
waterbodies. EPA estimates that only two to ten operations could
potentially be designated annually. If these entities are designated
however, a sales test indicates that a few small entities may
experience permit compliance costs of approximately 4% of sales
revenue. Since so few AAPFs discharge to impaired waterbodies, EPA's
evaluation shows that there would not be a significant impact to a
substantial number of small AAPFs.
In the case of animal feeding operations and aquatic projects, the
proposed authority merely would backstop existing State authority under
the Clean Water Act. Thus, EPA designation authority would not impose
any new costs on nonpoint source dischargers potentially subject to
designation because any costs to the potentially designated sources
that would result if EPA exercised its designation authority are the
same costs that would result if the State exercised its designation
authority under existing State and Federal laws and regulations. Thus,
the costs to animal feeding and aquatic projects would be the same
whether the State or EPA designated the source as subject to NPDES.
Moreover, when and how often EPA might exercise the proposed
authority is unpredictable for several reasons. First, the proposal
would authorize EPA action in only a limited set of circumstances: (1)
Where a State has either failed to submit a TMDL (or submitted a
deficient TMDL); (2) EPA has established a TMDL for the water body; and
(3) EPA determines that the nonpoint source is a significant
contributor of pollution and that designation (and permitting) of the
source are needed to ensure that load and waste load allocation are
met. EPA cannot predict when it may be required to establish TMDLs.
However, the Agency's expectations are that States with approved NPDES
programs will be submitting approvable TMDLs with load and waste load
allocations that will reflect achievement of the TMDLs, and that EPA
thus will need to exercise its designation authority infrequently.
Because EPA does not know for which water bodies in which States it
will need to establish TMDLs, it cannot predict what nonpoint source
dischargers it may need to consider for designation under the proposed
authority.
These intervening steps between today's proposal and any exercise
of EPA's authority (if the rule were promulgated as proposed)
underscore EPA's position that adoption of the designation provisions
would not impose significant costs on a substantial number of small
entities. Promulgation of the proposal is only one step in a series of
actions that must occur before any costs are imposed on any particular
nonpoint source discharger.
The third provision in the proposal would authorize EPA, in certain
circumstances, to object to state-issued permits that have not been
reissued following the expiration of their 5-year term. Where water
quality standards (or applicable effluent limitations guidelines)
change during a permit term, the permittee is generally protected
during the permit term against new or more stringent permit conditions
necessary to implement the new water quality standards or effluent
limitations guidelines, until a new permit is issued. In most cases,
permittees submit timely applications for renewal and permitting
authorities reissue these permits in a timely manner. In some cases,
authorized States may fail to reissue NPDES permits at the end of their
5-year term as is currently required, and the existing permits continue
in effect under general principles of administrative law.
(Administrative continuance protects the permittee who has submitted a
timely application for renewal from being penalized for discharging
without a permit.)
This proposal, if promulgated, would authorize EPA to take action
to reissue an expired permit in those cases where the State failed to
reissue the permit after a specified period. EPA's exercise of this
authority is limited to circumstances in which a permit authorizes
discharges to impaired waterbodies or the permit does not currently
contain limits consistent with an applicable waste load allocation in
an EPA approved or established TMDL. While EPA assumes that authorized
States will expeditiously reissue permits with the required water
quality-based effluent limits, where States fail to reissue such
permits, EPA would use this new authority to issue such permits in a
timely manner.
This provision also would not impose any additional costs on
dischargers, including small entities. Because as a matter of law, the
discharger's new permit, when issued, already must include any
applicable new or more stringent conditions. Therefore, the effect of
the proposed change is, at most, to accelerate the timing of the
legally-mandated compliance with the new conditions. Consequently, EPA
has concluded that adoption of a proposal to authorize future
discretionary action by EPA would not result in the imposition of any
new costs on small entities.
For the reasons explained herein, EPA concluded that it could
properly certify the proposal. See e.g., United States Distribution
Companies v. FERC, 88 F.3d 1105, 1170 (D.C. Cir. 1996). (``[N]o
[regulatory flexibility] analysis is necessary when an agency
determines that the rule will not have a significant economic impact on
a substantial number of small entities that are subject to the
requirements of the rule,'' United
[[Page 46084]]
Distribution at 1170, quoting Mid-Tex Elec. Co-op v. FERC, 773 F.2d
327, 342 (D.C. Cir. 1985) (emphasis added by United Distribution
court); see also Motor & Equip. Mrfrs. Ass'n v. Nichols, 142 F.3d 449,
467 & n.18 (D.C. Cir. 1998) (the RFA imposes no obligation on an agency
to conduct a small entity analysis on entities it does not regulate);
American Trucking Association, Inc. v. EPA, 175 F.3d 1027 (D.C. Cir.
1999) (the RFA requires an agency to prepare a small entity impact
analysis only of the effects on those entities that are subject to the
requirements of a rule or directly regulated by a rule). Additional
information supporting EPA's assessment is described in the
administrative record supporting the proposal.
B. Executive Order 12866
Under Executive Order 12866 (58 FR 51735, (October 4, 1993)), the
Agency must determine whether the regulatory action is ``significant''
and therefore subject to Office of Management and Budget (OMB) review
and the requirements of the Executive Order. The Order defines
``significant regulatory action'' as one that is likely to result in a
rule that may:
(1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or Tribal governments or
communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
Pursuant to terms of Executive Order 12866, it has been determined
that this rule is a ``significant regulatory action.'' As such, this
action was submitted to OMB for review. Changes made in response to OMB
suggestions or recommendations will be documented in the public record.
C. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local and Tribal
governments and the private sector. Under section 202 of the UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``Federal Mandates'' that
may result in expenditures to State, local, and Tribal governments, in
the aggregate, or to the private sector, of $100 million or more in any
one year. Before promulgating an EPA rule for which a written statement
is needed, section 205 of the UMRA generally requires EPA to identify
and consider a reasonable number of regulatory alternatives and adopt
the least costly, most cost-effective or least burdensome alternative
that achieves the objectives of the rule. The provisions of section 205
do not apply when they are inconsistent with applicable law. Moreover,
section 205 allows EPA to adopt an alternative other than the least
costly, most cost-effective or least burdensome alternative if the
Administrator publishes with the rule an explanation why that
alternative was not adopted. Before EPA establishes any regulatory
requirements that may significantly or uniquely affect small
governments, including Tribal governments, it must have developed under
section 203 of the UMRA a small government agency plan. The plan must
provide for notifying potentially affected small governments, enabling
officials of affected small governments to have meaningful and timely
input in the development of EPA regulatory proposals with significant
Federal intergovernmental mandates, and informing, educating, and
advising small governments on compliance with the regulatory
requirements.
EPA has determined that this proposed rule does not contain a
Federal mandate that may result in expenditures of $100 million or more
for State, local, and tribal governments, in the aggregate, or the
private sector in any one year. The costs to State, local and tribal
governments, in the aggregate, or the private sector in any one year to
implement the requirements in today's proposal are not expected to
exceed $65.2 million in any one year. The total cost to State, local
and tribal governments is not expected to exceed $0.96 million in any
one year, with a majority of these costs born by State government. The
remaining $64.24 million is expected to be born by the private sector.
Thus, today's proposed rule is not subject to the requirements of
section 202 and 205 of UMRA.
A detailed discussion of the costs and impacts of the proposed
rule, and the methodologies used to assess them, are included in the
Analysis of the Incremental Cost of Proposed Revisions to the NPDES
Permit and Water Quality Standards Rules which is available in the
docket for this rule-making. While the analysis is based on the best
data currently available to the agency, it necessarily includes
assumptions where needed to fill data gaps. One such assumption is the
percentage of large construction sites that would be required to obtain
offsets under the proposed rule. Based on the percentage of waters
identified in State 305(b) reports where construction activity
contributed to impairment, EPA has estimated that 2-3% of large
construction sites would discharge pollutants of concern to impaired
waters and thus be required to obtain offsets. EPA requests comment on
this assumption and any data that commenters may have that would
support their comments. EPA also requests comment more generally on all
of the assumptions and methodologies used in the economic analysis.
EPA has determined that this proposed rule contains no regulatory
requirements that might significantly or uniquely impact small
governments. As explained in the Regulatory Flexibility Act section of
the preamble, this proposed rule establishes no requirements applicable
to small governmental entities. Further, regulated entities are not
expected to negatively impact small governmental entities. Therefore,
this proposed rule will not significantly affect small governmental
entities.
In addition, today's proposal will not significantly or uniquely
affect Tribal governments. Currently, there are only fifteen Tribes
with EPA approved or promulgated water quality standards and there are
no Tribes authorized to administer the NPDES program or to establish
TMDLs under section 303(d). As a result, this proposal will not
significantly or uniquely affect Tribal governments. However, as Tribes
continue to build their Clean Water Act capacity and establish water
quality programs, more Tribes are likely to adopt water quality
standards and seek approval to administer the NPDES program and
establish TMDLs. If today's proposed rulemakings were to result in
changes to these future Tribal water quality programs, the costs for
Tribal governments would be analyzed. Moreover, whether or not Tribes
choose to do so, they have a strong interest in protecting water
quality on Tribal lands. Thus, even though today's proposal will not
significantly or uniquely affect Tribal governments, Tribes may in the
future be subject to the requirements in today's proposal. Recognizing
the need to consider the views and concerns of Tribal governments in
any comprehensive evaluation of how
[[Page 46085]]
TMDLs are established, EPA determined it was appropriate to include a
Tribal representative on the TMDL FACA Committee. The committee's final
report addresses Tribal issues, recommending that EPA increase efforts
to educate Tribes about water quality programs, including TMDLs, and
ensure that EPA and State water quality staff respect the government-
to-government relationship with Tribes in all TMDL activities.
D. Paperwork Reduction Act
The information collection requirements in this proposed rule have
been submitted for approval to the Office of Management and Budget
(OMB) under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. An
Information Collection Request (ICR) document has been prepared by EPA
(ICR No.1920.01) and a copy may be obtained from Sandy Farmer, OP
Regulatory Information Division; U.S. Environmental Protection Agency
(2137); 401 M Street, SW; Washington, DC 20460 or by calling (202) 260-
2740.
The offset provision will result in either the modification of
NPDES permits, the issuance of new NPDES permits, or the issuance of an
individual NPDES permit in lieu of coverage under a General Permit. The
designation provisions will result in the issuance of NPDES permits
(either individually or under a General Permit) to operations that
would not have previously have required to obtain them. The NPDES
permitting authorities, in the form of NPDES authorized States and
Territories or EPA Regions in Non-NPDES authorized States and
Territories, intend to use the information collected to set appropriate
permit conditions, track discharges, and assess permit compliance. EPA
has examined available databases and determined that these databases
revealed no duplicate requirements. EPA has concluded that no
government information collection activity duplicates the information
requested by this and, therefore, it has no other way to obtain the
information. Therefore, these responses are mandatory. In addition to
the NPDES permitting authorities, EPA's Office of Wastewater Management
(Office of Water), OECA, and environmental groups will most likely use
the information collected to assess the regulated community's level of
compliance and help evaluate the effectiveness of these provisions.
Although highly unlikely, permit applications may contain confidential
business information. If this is the case, the respondent may request
that such information be treated as confidential. All confidential data
will be handled in accordance with 40 CFR 122.7, 40 CFR part 2, and
EPA's Security Manual Part III, Chapter 9, dated August 9, 1976.
However, CWA section 308(b) specifically states that effluent data may
not be treated as confidential.
The total projected burden associated with the information
collection requirements of this proposal is estimated to be 71,996
hours annually and to impose an estimated cost of $2,415,320 annually.
The annual burden to each private sector respondent for collecting
information required by the rule is estimated to be: (1) An average of
23 hours per each construction respondent; (2) an average of 28.6 hours
per other storm water respondent; (3) an average of 55 hours per
respondent requiring process water offsets; (4) an average of 84 hours
per silviculture activity that is designated; (5) an average of 47
hours per animal feeding operation that is designated; and (6) an
average of 88 hours per aquatic animal production facility that is
designated. The annual burden to NPDES authorized States and
Territories is (1) An average of 1,040 hours per general permit issued;
(2) an average of 1.5 hours to process and review each storm water NOI;
(3) an average of 2 hours to process and review each submitted or
updated silviculture or animal feeding operation NOI; and (4) an
average of 80 hours to issue an NPDES permit to designated aquatic
animal production facility. The Agency's burden is estimated to be
4,646 hours annually. These burden estimates include the time required
to review the instructions, search existing data sources, gather and
maintain (usually in electronic databases) all necessary data, and
complete and review the information required to be collected.
Burden means the total time, effort, or financial resources
expended by persons to generate, maintain, retain, or disclose or
provide information to or for a Federal agency. This includes the time
needed to review instructions; develop, acquire, install, and utilize
technology and systems for the purposes of collecting, validating, and
verifying information, processing and maintaining information, and
disclosing and providing information; adjust the existing ways to
comply with any previously applicable instructions and requirements;
train personnel to be able to respond to a collection of information;
search data sources; complete and review the collection of information;
and transmit or otherwise disclose the information.
An Agency may not conduct or sponsor, and a person is not required
to respond to a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for EPA's
regulations are listed in 40 CFR part 9 and 48 CFR Chapter 15.
Comments are requested on EPA's need for this information, the
accuracy of the provided burden estimates, and any suggested methods
for minimizing respondent burden, including through the use of
automated collection techniques. Send comments on the ICR to the
Director, OP Regulatory Information Division; U.S. Environmental
Protection Agency (2137); 401 M Street, SW; Washington, DC 20460; and
to the Office of Information and Regulatory Affairs, Office of
Management and Budget, 725 17th Street, NW; Washington, DC 20503,
marked ``Attention: Desk Officer for EPA.'' Include the ICR number in
any correspondence. Since OMB is required to make a decision concerning
the ICR between 30 and 60 days after August 23, 1999, a comment to OMB
is best assured of having its full effect if OMB receives it by
September 22, 1999. The final rule will respond to any OMB or public
comments on the information collection requirements contained in this
proposal.
E. Executive Orders on Federalism
Under Executive Order 12875, ``Enhancing the Intergovernmental
Partnership,'' EPA may not issue a regulation that is not required by
statute and that creates a mandate upon a State, local, or tribal
government, unless the Federal government provides the funds necessary
to pay the direct compliance costs incurred by those governments, or
EPA consults with those governments. If EPA complies by consulting,
Executive Order 12875 requires EPA to provide to OMB a description of
the extent of EPA's prior consultation with representatives of affected
State, local, and tribal governments, the nature of their concerns, any
written communications from the governments, and a statement supporting
the need to issue the regulation. In addition, Executive Order 12875
requires EPA to develop an effective process permitting elected
officials and other representatives of State, local and tribal
governments ``to provide meaningful and timely input in the development
of regulatory proposals containing significant unfunded mandates.''
EPA has concluded that this proposed rule will create a mandate on
State governments and authorized Tribes and that the Federal government
will not provide all of the funding necessary to pay the direct costs
incurred by the State governments and authorized Tribes in complying
with the mandate.
[[Page 46086]]
However, EPA has substantially increased funding for States,
Territories, and authorized Tribes through the State-matched CWA
section 106 and 319 grant programs. In developing this proposed rule,
EPA consulted with State, local, and tribal governments to enable them
to provide meaningful and timely input in the development of this rule.
Before beginning to develop today's proposal, EPA convened a
Federal Advisory Committee to make recommendations for improving the
efficiency and effectiveness of TMDLs. The TMDL FACA Committee was
comprised of 20 members, including four senior level State officials,
an elected local official, and a Tribal consortium representative. Over
a period of one and one-half years, the TMDL FACA Committee held six
meetings at locations throughout the country. These meetings were open
to the general public, as well as representatives of State, local, and
Tribal governments, and all included public comment sessions. The TMDL
FACA Committee focused its deliberations on four broad issue areas:
identification and listing of waterbodies; development and approval of
TMDLs; EPA management and oversight; and science and tools. On July 28,
1998, the TMDL FACA Committee submitted its final report to EPA
containing more than 100 consensus recommendations for changes and
improvements to TMDLs. As explained throughout this preamble, EPA
carefully reviewed the TMDL FACA Committee's consensus recommendations
and incorporated, in whole or in part, most of those recommendations in
this proposal.
Following completion of the FACA Committee process, EPA continued
to meet with State and local government officials to seek their views
on needed changes to the Water Quality Standards and NPDES regulations.
While expressing support for many of the proposed changes being
considered by EPA, State officials and their representatives also
expressed general concerns about the capacity of State governments to
carry out the new requirements proposed today. In particular, States
were concerned about writing NPDES permits which satisfy the offset
requirements, in the absence of a well established market for pollutant
trading. The proposed regulation establishes some explicit requirements
for States to use in establishing an offset sufficient to satisfy the
offset requirements. States were also concerned about the role of EPA
in reissuing State-issued expired and administratively-continued NPDES
permits. EPA determined that the exercise of its authority in limited
circumstances is necessary to assure reasonable further progress in
impaired waterbodies prior to the establishment of a TMDL and to
provide reasonable assurance that TMDLs will be implemented. In
developing today's proposal, EPA considered the concerns of State and
local governments and determined the need to revise the NPDES and Water
Quality Standards regulations to provide opportunities for further
progress toward meeting water quality standards in impaired waterbodies
and to provide reasonable assurance of effective TMDL development.
Today's proposal improves the effectiveness, efficiency and pace of
water quality improvement and TMDL establishment.
Finally, while there is a new executive order on federalism, it
will not go into effect for ninety days. In the interim, under the
current E.O. 12612 on federalism, this rule does not have a substantial
direct effect upon States, upon the relationship between the national
government and the States, or upon the distribution of power and
responsibilities among the various levels of government. The only
provisions in this rule that directly affect States are those requiring
States to adopt and implement antidegradation policies that ensure new
and significantly expanding dischargers who are large entities on
impaired waterbodies offset any proposed increases in their discharges
by more than a 1.5:1 ratio. These provisions are not substantial in the
context of State's overall water quality and permitting program. States
already are required to have, and do have, antidegradation policies.
This rule simply would require States to add one discrete provision to
their existing policies. With respect to the remaining provisions,
authorizing EPA to designate certain sources as point sources and to
reissue expired permits where the State failed to do so, these
provisions authorize EPA to act only where the State has failed to act.
Accordingly, these provisions will not have a substantial direct effect
on States or on intergovernmental relationships or responsibilities.
F. Executive Order 13084: Consultation and Coordination With Indian
Tribal Governments
Under Executive Order 13084, EPA may not issue a regulation that is
not required by statute, that significantly or uniquely affects the
communities of Indian tribal governments, and that imposes substantial
direct compliance costs on those communities, unless the Federal
government provides the funds necessary to pay the direct compliance
costs incurred by the tribal governments, or EPA consults with these
governments. If EPA complies by consulting, Executive Order 13084
requires EPA to provide to OMB, in a separately identified section of
the preamble to the rule, a description of the extent of EPA's prior
consultation with representatives of affected tribal governments, a
summary of the nature of their concerns, and a statement supporting the
need to issue the regulation. In addition, Executive Order 13084
requires EPA to develop an effective process permitting elected and
other representatives of Indian tribal governments ``to provide
meaningful and timely input in the development of regulatory policies
on matters that significantly or uniquely affect their communities.''
As explained above in the discussion of UMRA requirements, today's
rule proposal does not significantly or uniquely affect the communities
of Indian tribal governments. Accordingly, the requirements of Section
3(b) of Executive Order 13084 do not apply to this proposed rule.
G. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
Executive Order 13045, ``Protection of Children from Environmental
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997) applies
to any rule that: (1) Is determined to be ``economically significant''
as defined under Executive Order 12866, and (2) concerns an
environmental health or safety risk that EPA has reason to believe may
have a disproportionate effect on children. If the regulatory action
meets both criteria, the Agency must evaluate the environmental health
or safety effects of the planned rule on children, and explain why the
planned regulation is preferable to other potentially effective and
reasonably feasible alternatives considered by the Agency.
This rule is not subject to the Executive Order because it is not
economically significant as defined in Executive Order 12866.
H. National Technology Transfer and Advancement Act
Under section 12(d) of the National Technology Transfer and
Advancement Act (NTTAA), EPA is required to use voluntary consensus
standards in its regulatory activities unless to do so would be
inconsistent with applicable law or is otherwise impractical. Voluntary
consensus standards are technical standards (e.g., materials
[[Page 46087]]
specifications, test methods, sampling procedures, and business
practices) that are developed or adopted by voluntary consensus
standards bodies. Where available and potentially applicable voluntary
consensus standards are not used by EPA, the Act requires the EPA to
provide Congress, through OMB, an explanation of the reasons for not
using such standards.
This proposed rule does not involve any technical standards.
Therefore, EPA is not considering the use of any voluntary consensus
standards. EPA welcomes comments on this aspect of the proposed
rulemaking and specifically, EPA invites the public to identify any
potentially applicable voluntary consensus standards and to explain why
such standards should be used in this regulation.
List of Subjects
40 CFR Part 122
Environmental protection, Administrative practice and procedure,
Confidential business information, Hazardous substances, Reporting and
recordkeeping requirements, Water pollution control.
40 CFR Part 123
Environmental protection, Administrative practice and procedure,
Confidential business information, Hazardous substances, Indians-lands,
Intergovernmental relations, Penalities, Reporting and recordkeeping
requirements, Water pollution control.
40 CFR Part 124
Environmental protection, Administrative practice and procedure,
Hazardous substances, Indians-lands, Reporting and recordkeeping
requirements, Water pollution control, Water supply.
40 CFR Part 131
Reporting and recordkeeping requirements, Water pollution control.
Dated: August 12, 1999.
Carol M. Browner,
Administrator.
For the reasons set forth in the preamble, EPA proposes to amend 40
CFR Parts 122, 123, 124, and 131 as follows:
PART 122--EPA ADMINISTERED PERMIT PROGRAMS: THE NATIONAL POLLUTANT
DISCHARGE ELIMINATION SYSTEM
1. The authority for part 122 continues to read as follows:
Authority: The Clean Water Act, 33 U.S.C. 1251 et seq.
2. Amend Sec. 122.2 as follows:
a. Adding the definition of ``Existing discharger;''
b. In the definition of ``New discharger,'' revising the
introductory text and paragraphs (a) through (d);
c. Adding the definition of ``Significant expansion.''
Sec. 122.2 Definitions.
* * * * *
Existing discharger means any building, structure (including an
outfall or a pipeline), facility, or installation:
(a) From which there is a ``discharge of pollutants'' to ``waters
of the United States'' that has received or been permitted under a
finally effective NPDES permit; or
(b) From which pollutants have been and are currently added to
waters of the United States that has never received nor been permitted
under a finally effective NPDES permit, but only if it becomes subject
to NPDES permitting requirements pursuant to a regulatory designation
(on an individual or categorical basis).
(c) This term includes those dischargers who move an outfall(s)
within the ``same body of water.'' In determining whether an outfall is
moved within the ``same body of water'' as its original location, the
permitting authority should consider whether:
(1) The background concentration of the pollutant in the receiving
water (excluding any amount of the pollutant in the facility's
discharge) is similar at and between both outfall points;
(2) There is a direct hydrological connection between outfall
points; and
(3) Water quality characteristics (e.g., temperature, pH, hardness)
are similar at and between both outfall points.
* * * * *
New discharger means any building, structure (including an outfall
or a pipeline), facility, or installation:
(a) From which there is or may be a ``discharge of pollutants' to
``waters of the United States;''
(b) Which has never received or been permitted under a finally
effective NPDES permit; and
(c) Which is not an existing discharger.
(d) This term includes those dischargers who move an outfall(s) to
another location not within the same body of water.
* * * * *
Significant expansion means a twenty percent or greater increase in
loadings above the discharger's current permit limit.
* * * * *
3. In Sec. 122.4, add new paragraph (j) to read as follows:
Sec. 122.4 Prohibitions (applicable to State NPDES programs, see
Sec. 123.25).
* * * * *
(j)(1) To a new discharger or existing discharger undergoing a
significant expansion unless the discharger complies with the
antidegradation provisions of State water quality standards applicable
to such waters, including the antidegradation provisions adopted
pursuant to 40 CFR 131.12(a)(1)(ii).
(2) Where a permit is issued subject to paragraph (j)(1) of this
section and where the discharger is required to obtain and maintain
pollutant load reductions required as offsets to meet antidegradation
requirements adopted pursuant to 40 CFR 131.12(a)(1)(ii), the
discharger must also comply with each of the following:
(i) The pollutant load reductions must be achieved from a source(s)
of the pollutant(s) for which the waterbody is impaired and that the
new or existing discharger undergoing a significant expansion is
required to offset;
(ii) The pollutant load reductions must be achieved from a
source(s) located on the same waterbody as the discharge from the new
discharger or existing discharger undergoing a significant expansion;
(iii) The pollutant load reductions must be the result of pollutant
control measures implemented by, or secured and assured by, the new
discharger or existing discharger undergoing a significant expansion
(credit will not be give for reductions already required for some other
reason);
(iv)(A) The pollutant load reductions must be achieved on or before
the date the discharge commences and remain in place until
(1) A TMDL for the waterbody is approved or established by EPA, and
the discharger's permit reflects its wasteload allocation under the
TMDL; or
(2) The discharger ceases to discharge the pollutant(s) causing the
impairment;
(B) The Director has the discretion not to require that the
pollutant load reductions be achieved on or before the date the
discharge commences, but as soon thereafter as possible, in exchange
for requiring the discharger to obtain pollutant load reductions by an
amount of at least twice the amount of the new or expanded discharge.
(v) Where a discharger obtains pollutant load reductions from an
existing point source(s), the NPDES permit(s) for the existing point
source(s) must be modified to reflect those reductions on or before the
date the permit is issued to the new discharger
[[Page 46088]]
or existing discharger undergoing a significant expansion; and
(vi) Where a discharger obtains pollutant load reductions from an
existing nonpoint source(s), the discharger's permit must include any
conditions, including the offset requirements and any accompanying
monitoring and reporting requirements, necessary to ensure continued
achievement of the pollutant load reductions from the nonpoint
source(s).
(3) An explanation of the development of the requirements for the
discharger to meet the criteria of paragraphs (j)(1) and (2) of this
section must be included in the fact sheet or statement of basis for
the permit required under 40 CFR 124.7 and 124.8.
(4) The terms ``new discharger'' and ``significant expansion'' are
defined in Sec. 122.2 of this part.
4. Amend Sec. 122.23 to revise paragraphs (c)(1) introductory text
and (c)(3) and to add new paragraph (c)(4) to read as follows:
Sec. 122.23 Concentrated animal feeding operations (applicable to
State NPDES programs, see Sec. 123.25).
* * * * *
(c) Case-by-case designation of concentrated animal feeding
operations. (1) The Director, or in States with approved NPDES programs
either the Director or the EPA Regional Administrator, may designate
any animal feeding operation as a concentrated animal feeding operation
upon determining that it is a significant contributor of pollution to
the waters of the United States. In making this designation the
Director shall consider the following factors:
* * * * *
(3) A permit application shall not be required from a concentrated
animal feeding operation designated under this paragraph until the
Director, or in States with approved NPDES programs, either the
Director or the EPA Regional Administrator, has conducted an on-site
inspection of the operation and determined that the operation should
and could be regulated under the permit program.
(4) In States with approved NPDES programs, EPA shall only
designate animal feeding operations where pollutants are discharged
into waters for which EPA establishes a TMDL to ensure that wasteload
allocations and load allocations under the TMDL are achieved.
5. Amend Sec. 122.24 to revise paragraphs (c)(1) and (c)(2)
introductory text and to add new paragraph (c)(3) to read as follows:
Sec. 122.24 Concentrated aquatic animal production facilities
(applicable to State NPDES programs, see Sec. 123.25).
* * * * *
(c) Case-by-case designation of concentrated aquatic animal
production facilities. (1) The Director, or in States with approved
NPDES programs, either the Director or the EPA Regional Administrator,
may designate any warm or cold water aquatic animal production facility
as a concentrated aquatic animal production facility upon determining
that it is a significant contributor of pollution to waters of the
United States. In making this designation the Director shall consider
the following factors:
* * * * *
(2) A permit application shall not be required from a concentrated
aquatic animal production facility designated under this paragraph
until the Director, or in States with approved NPDES programs, either
the Director or the EPA Regional Administrator, has conducted on-site
inspection of the facility and has determined that the facility should
and could be regulated under the permit program.
(3) In States with approved NPDES programs, EPA shall only
designate aquatic animal production facilities where pollutants are
discharged into waters for which EPA establishes a TMDL to ensure that
the wasteload allocations and load allocations under the TMDL are
achieved.
6. Amend Sec. 122.26 to revise paragraphs (a)(1)(v) and (b)(14)(x)
to read as follows:
Sec. 122.26 Storm water discharges (applicable to State NPDES
programs, see Sec. 123.25).
(a) * * *
(1) * * *
(v) A discharge which the Director, or in States with approved
NPDES programs, either the Director or the EPA Regional Administrator,
determines to contribute to a violation of a water quality standard or
is a significant contributor of pollutants to waters of the United
States. This designation may include a discharge from any conveyance or
system of conveyances used for collecting and conveying storm water
runoff or a system of discharges from municipal separate storm sewers,
except for those discharges from conveyances which do not require a
permit under paragraph (a)(2) of this section or agricultural storm
water runoff which is exempted from the definition of point source at
Sec. 122.2. The Director may designate discharges from municipal
separate storm sewers on a system-wide or jurisdiction-wide basis. In
making this determination the Director may consider the following
factors:
(A) The location of the discharge with respect to waters of the
United States as defined at 40 CFR 122.2;
(B) The size of the discharge;
(C) The quantity and nature of the pollutants discharged to waters
of the United States;
(D) Other relevant factors;
(E) EPA shall only designate discharges from silvicultural
activities into waters for which EPA is establishing the TMDL to ensure
that the wasteload allocations and load allocations under the TMDL are
achieved.
* * * * *
(b) * * *
(14) * * *
(x) Construction activity including clearing, grading and
excavation activities except: operations that result in the disturbance
of less than five acres of total land area which are not part of a
larger common plan of development or sale (This term does not include
construction activity associated with silviculture, except rock
crushing, gravel washing, log sorting, and log storage facilities);
* * * * *
7. Amend Sec. 122.27 to revise paragraph (b)(1) to read as follows:
122.27 Silvicultural activities (applicable to State NPDES programs,
see Sec. 123.25).
* * * * *
(b) Definitions. (1) Silvicultural point source means any
discernible, confined and discrete conveyance related to rock crushing,
gravel washing, log sorting, or log storage facilities which are
operated in connection with silvicultural activities and from which
pollutants are discharged into waters of the United States. This term
also includes discharges composed entirely of storm water from
silvicultural activities that are designated under 40 CFR
122.26(a)(1)(v) as requiring a 402 permit. Some activities (such as
stream crossing for roads) may involve point source discharges of
dredged and fill material which may require a CWA section 404 permit
(See 33 CFR 209.120 and part 233).
* * * * *
8. Amend Sec. 122.29 by revising paragraph (a)(3) to read as
follows:
Sec. 122.29 New sources and new dischargers.
(a) * * *
(3) Existing discharger is defined in Sec. 122.2;
* * * * *
9. Amend Sec. 122.44 to revise paragraph (d) introductory text and
paragraph
[[Page 46089]]
(d)(1) introductory text to read as follows:
Sec. 122.44 Establishing limitations, standards, and other permit
conditions (applicable to State NPDES programs, see Sec. 123.25).
* * * * *
(d) Water quality standards and State requirements: any
requirements in addition to or more stringent than promulgated effluent
limitations guidelines or standards under sections 301, 304, 306, 307,
318 and 405 of CWA necessary to:
(1) Achieve water quality standards established under section 303
of the CWA, including State narrative criteria for water quality and
State antidegradation provisions.
* * * * *
PART 123--STATE PROGRAM REQUIREMENTS
1. The authority for part 123 continues to read as follows:
Authority: The Clean Water Act, 33 U.S.C. 1251 et seq.
2. Amend Sec. 123.44 to add paragraph (k) to read as follows:
Sec. 123.44 EPA review of and objections to State permits.
* * * * *
(k)(1) Where a State fails to submit a new draft or proposed permit
to EPA within 90 days after the expiration of the existing permit, EPA
may review the administratively-continued permit, using the procedure
described in paragraphs (a)(1) through (h)(3) of this section, if:
(i) The administratively-continued permit allows the discharge of
pollutants into a waterbody for which EPA has established or approved a
TMDL and the permit is not consistent with an applicable wasteload
allocation; or
(ii) The administratively-continued permit allows the discharge of
a pollutant(s) of concern into a waterbody that does not meet water
quality standards and for which EPA has not established or approved a
TMDL.
(2) To review an expired and administratively-continued permit
under this subsection, EPA must give the State and the discharger at
least 90 days notice of its intent to consider the expired permit as a
proposed permit. At any time beginning 90 days after permit expiration,
EPA may submit this notice.
(3) If the State submits a draft or proposed permit for EPA review
at any time before EPA issues the permit under paragraph (h) of this
section, EPA will withdraw its notice of intent to take permit
authority under this subsection and will evaluate the draft or proposed
permit under this section.
PART 124--PROCEDURES FOR DECISIONMAKING
1. The authority for part 124 continues to read as follows:
Authority: Resource Conservation and Recovery Act, 42 U.S.C.
6901 et seq.; Safe Drinking Water Act, 42 U.S.C. 300(f) et seq.;
Clean Water Act, 33 U.S.C. 1251 et seq. Clean Air Act 42 U.S.C. 7401
et seq.
2. Section 124.7 is revised to read as follows:
Sec. 124.7 Statement of basis.
EPA shall prepare a statement of basis for every draft permit for
which a fact sheet under 124.8 is not prepared. The statement of basis
shall briefly describe the derivation of the conditions of the draft
permit and the reasons for them or, in the case of notices of intent to
deny or terminate, reasons supporting the tentative decision. The
statement of basis must also include the reasons for any determinations
made, limitations derived or requirements set to satisfy the provisions
under Sec. 122.4(j) of this chapter.
3. Amend Sec. 124.56 by revising (b)(1)(ii); (b)(1)(iii) and
(b)(1)(iv) and by adding paragraph (b)(1)(v) to read as follows:
Sec. 124.56 Fact sheets.
* * * * *
(b)(1) * * *
(ii) Limitations on internal waste streams under Sec. 122.45(i) of
this chapter;
(iii) Limitations on indicator pollutants under Sec. 125.3(g) of
this chapter;
(iv) Limitations set on a case-by-case basis under Sec. 125.3
(c)(2) or (c)(3) of this chapter, or pursuant to Section 405(d)(4) of
the CWA; or
(v) Limitations and/or requirements derived to satisfy the
provisions under Sec. 122.4(j) of this chapter.
* * * * *
PART 131--WATER QUALITY STANDARDS
1. The authority citation for part 131 continues to read as
follows:
Authority: 33 U.S.C. 1251 et seq.
2. Amend Sec. 131.12 to redesignate paragraph (a)(1) as paragraph
(a)(1)(i) and add new paragraph (a)(1)(ii) to read as follows:
Sec. 131.12 Antidegradation policy.
(a) * * *
(i) * * *
(ii) In order to authorize a new discharger or an existing
discharger undergoing a significant expansion as defined in 40 CFR
122.2, that is not a small entity as defined in 5 U.S.C. 601(6), to
discharge into a waterbody that does not attain water quality standards
the pollutant(s) causing the nonattainment and for which EPA has not
approved or established a Total Maximum Daily Load for a pollutant(s)
causing the nonattainment, reasonable further progress shall be made
toward attaining the water quality standard. Reasonable further
progress for these dischargers means, at a minimum, that any increase
in mass loadings of the pollutant(s) causing the nonattainment will be
offset by pollutant(s) load reductions of the pollutant(s) causing the
nonattainment by a ratio of at least equal to 1.5:1.
(A) The Director may determine that an offset in pollutant load
reduction(s) at a ratio of less than 1.5:1, but more than 1:1, is
sufficient to achieve reasonable further progress.
(B) Where the Director determines that any offset may result in
further degradation of water quality, the Director need not require an
offset.
(C) A discharger required to obtain an offset shall comply with the
requirements under Sec. 122.4(j)(2) of this chapter.
* * * * *
[FR Doc. 99-21415 Filed 8-20-99; 8:45 am]
BILLING CODE 6560-50-P
